TIME technology

Comcast, AT&T Say They’re Not Big Enough Yet

Comcast
The Comcast Corp. logo is seen as Brian Roberts, chairman and chief executive officer of Comcast Corp., right, speaks during a news conference at the National Cable and Telecommunications Association (NCTA) Cable Show in Washington, D.C., U.S., on Tuesday, June 11, 2013. Bloomberg—Bloomberg via Getty Images

At a Senate hearing ahead of major merger melees

Two of the biggest players in the telecom industry faced off against a public interest group, a trade group and a satellite company at a Senate hearing Wednesday in a debate that will help set the stage for upcoming battles over the future of broadband, television and streaming video.

The hearing comes just as federal regulators are staffing up to review two mammoth mergers: One between Comcast and Time Warner Cable, and another between AT&T and DirecTV. To some degree, the hearing was only ceremonial: Congress won’t have any direct say over whether federal regulators approve or deny the mergers. But political winds in Washington can affect regulators’ moods, and the back-and-forth gave members of the Senate Committee on Commerce, Science and Transportation a chance to publicly speak their minds on the mergers.

While the discussion at the hearing was unflaggingly respectful, it touched, just below the surface, on what has become a fiercely ideological war with regard to the future of TV, with each side presenting a vision incompatible with the other’s.

Comcast and AT&T argued that massive consolidation in the telecom industry is good for consumers, good for innovation, and good for the free market. They warned that if the government does not allow the mergers to go through, incumbent telecom companies would no longer be able to invest in basic Internet infrastructure, leaving consumers to pay more for fewer Internet and TV options.

Representatives from advocacy group Public Knowledge, a TV writer’s guild, and satellite TV company Dish made the opposite case. They said that recent consolidation in the telecom industry has been terrible for consumers, driven up prices and driven down the quality of customer service. They also said the lack of competition has squashed innovation and investment in broadband infrastructure.

At the center of the discussion was Americans’ shifting TV-viewing habits. When Americans want to watch TV, they’re increasingly bypassing traditional set-top boxes, instead opting for their smartphones, tablets, and laptops. Online video consumption grew by 71% in the U.S. between 2012 and 2013, according to Nielsen.

That trend has been the driving force behind skyrocketing broadband subscriptions—a major cash cow for cable companies and for telecom companies that offer services faster than DSL. AT&T’s revenue from its U-Verse high-speed broadband business was up 29% from last year according to a recent quarterly report, for example. Comcast, which already has more than 21 million broadband subscribers, says the broadband business is one of its fastest-growing offerings.

That so many Americans are streaming more video online has also made online TV and video content companies, like Netflix, YouTube and Vimeo, fundamentally dependent on telecom companies’ pipes to reach customers. Public Knowledge’s Gene Kimmelman argued that no online video streaming company can exist without going through broadband providers like AT&T and Comcast, whose services are necessary to deliver streaming content to consumers. That sets up a potential problem, as Comcast could be incentivized not to carry Netflix or YouTube content as quickly as its own video offerings (Comcast owns NBCUniversal, a major content production company).

“Everyone who wants to make the online video system works needs to make a deal with Comcast,” he said.

Also addressed during the hearing was many Americans’ frustration at having to pay large bills for pay-TV—bills that have risen faster than inflation—to receive hundreds of channels. The non-profit consumers rights group, Consumers Union, has said that at least two-thirds of pay-TV customers [PDF] would prefer to pay less for a handful of programs that they actually watch. The disconnect between these two methods—known as “bundling” versus “a al carte”—is at the heart of the future of online video.

“The younger generation doesn’t want to spend $120 for 500 channels,” said Jeffrey Blum, a senior vice president of Dish, the second-largest satellite company in the country after DirecTV. But fixing the problem, he said, requires going up against incumbent telecom companies, like Comcast, AT&T and Verizon, which rely on bundling to underwrite their pay TV services, and would lose out if most Americans simply cut their pay-TV bill and began streaming shows online. Popular networks like ESPN would also lose out; in the current system, the telecom companies pay them large fees to redistribute their content.

Still, Blum said, there is already “too much power in the hands of too few” in the broadband space. A combined Comcast-Time Warner Cable “will have the incentive and ability to stifle competition,” he said.

Both Cohen and AT&T’s senior executive VP John Stankey dismissed concerns about anticompetitive behavior. In previous testimony before Congress, Comcast’s executive VP David Cohen has said that the merger between Comcast and Time Warner Cable will not affect competition since the companies do not currently compete in any geographic region, and that Comcast has “only to gain” from more people streaming video online. The more demand there is for online video, “the more demand there is for our broadband service,” he said at a previous hearing.

In February, Comcast made a bid to buy Time Warner Cable for $45 billion; in May, AT&T’s bid for DirecTV was worth $48.5 billion. Neither deal has yet to pass regulatory muster.

Both Cohen and Stankey also reiterated their companies’ commitment to the Federal Communication Commission’s now-defunct rules on “net neutrality,” the notion that broadband providers treat all content that passes over their pipes equally. While both expressed their opposition to some public interest groups’ hopes that the telecom industry would be recategorized as a “Title II” industry, giving the FCC much more regulatory control over broadband, they said they supported the FCC’s newly proposed net neutrality rules.

Those rules have come under fire because they allow broadband companies to redirect some content to a “fast lane,” while relegating most content to a slower, regular lane. Cohen said that while he “didn’t understand” what “fast lanes and slow lanes” even were, he said it was a non-issue. “We don’t have any,” he said. “We don’t have any plans to develop any.”

TIME technology

Here Are the Other Companies Comcast Is Gobbling Up

Comcast Headquarters
The Comcast Center, which is Comcast's Corporate headquarters, is seen in Philadelphia, Penn. William Thomas Cain—Getty Images

Recent tech acquisitions put the cable giant in a position to dominate the digital video market and expand its broadband reach

While federal regulators, Congress, and most of K Street have been focused on Comcast’s massive, $45-billion proposed merger with Time Warner Cable, Comcast has been busy snapping up smaller fare.

In the last four months, Comcast has acquired two new tech companies, PowerCloud Systems and FreeWheel Media, both of which will help the cable giant touch nearly every aspect of how we use broadband Internet in our homes and offices, and especially how we watch video online.

But while Comcast has celebrated its newest acquisitions, its competitors, as well as a handful of consumer interest groups, are bracing themselves for the worst. Comcast, which owns NBC-Universal and is already the biggest pay-TV and broadband provider in the country, will likely use these new technologies to increase its dominance in both the broadband and online video markets.

PowerCloud, which Comcast acquired on Monday, has designed new technology to help people to monitor and control how broadband Internet is consumed in their homes and offices. The company’s consumer-facing app, SkyDog, keeps track of which computers or devices are accessing the Internet, what sites they’re visiting, when, and what their bandwidth use is at different times of day.

FreeWheel, which Comcast acquired in April, is an online advertising company dedicated to placing ads in most of the biggest media conglomerates’ videos and TV shows streamed online.

Both PowerCloud and FreeWheel, while they do very different things, put Comcast in a position to take advantage of two major—and majorly lucrative—trends in the industry. The first is what’s known as the “Internet of Things.” As Internet-connected appliances—like thermostats, lighting systems, refrigerators and coffee makers—begin to proliferate in our homes, PowerCloud’s technology could be used to prioritize certain devices at certain times of day. Meanwhile, FreeWheel could, say, place coffee ads on a coffee maker just when it senses that you’re running low on beans.

The second—and even more immediate—trend is that Americans are in the process of shifting, en masse, from watching shows on their TV sets to watching them a variety of digital devices, like smartphones, tablets, and laptops. Online video consumption grew by 71% in the U.S. between 2012 and 2013, according to Nielsen. FreeWheel, which is among the biggest mobile-advertising firms in the country, is poised to do well in that market, which has grown by 83% since last year, according to eMarketer, a market research firm.

Rival media and cable companies, meanwhile, are worried that Comcast’s acquisitions give an enormously powerful company even more power. For example, FreeWheel’s client base includes most of Comcast’s biggest competitors in the broadcast and pay-TV space, including Viacom, 21st Century Fox, Time Warner, and Walt Disney. Comcast’s rivals worry that it could use FreeWheel to access a host of valuable metrics about its competition, including what demographics are viewing which of their shows, when people are watching, and how much they are being paid for ad placement.

Comcast representatives have brushed aside such concerns. “FreeWheel operates as an independent business and continues to support the needs of its broad customer base of programmers and distributors,” said Rob Holmes, a vice president of advanced advertising at Comcast. “Our goal is to accelerate their business—in fact, they’ve already added new customers this year—so it’s in our best interest to respect client data and ensure FreeWheel maintains its autonomy.”

Media executives, for their part, have mostly remained pretty quiet, griping to reporters only anonymously. Some say they are worried about publicly complaining about Comcast’s recent acquisition because survival in the pay TV space requires working closely with Comcast. After all, Viacom, 21st Century Fox, and all the rest rely on Comcast, which is by far the biggest distribution network in the country, to pay billions in retransmission fees and to deliver networks’ TV content to tens of millions of consumers’ homes.

As for Comcast’s more recent acquisition of PowerCloud, some public interest advocates have expressed concerns about how the company will use that new technology. Comcast has said it’s too early to tell exactly how it will be implemented. A company representative said one plan is to use the technology to give consumers better parental controls, so that parents keep their child from accessing certain digital content. But critics say Comcast could use that technology, as well as strategic pricing, to control how consumers access different content on different devices. The company could, for example, make it easy, convenient and cheap for subscribers to watch certain, Comcast-approved content on all their devices, while making it inconvenient—or simply more expensive—to watch non-Comcast-approved content.

As part of its merger with NBC-Universal in 2011, Comcast promised to abide by now-defunct rules governing “net neutrality”—the notion that a broadband provider must treat all content equally—through 2018. But in today’s policy and technological climate, it’s unclear what that means. In April, the Federal Communications Commission proposed new rules on net neutrality specifying that broadband Internet providers, like Comcast, would be allowed to accept payments to “prioritize” some websites’ content over others, and to stream certain videos faster than others.

TIME Education

Teachers Union Pulls Full-Throated Support for Common Core

Students Taking Tests Common Core
Getty Images

Move by American Federation of Teachers is blow to the White House

After years of battling conservative groups opposed to Common Core, supporters of the testing standards discovered Friday morning that one of their most avid allies, the American Federation of Teachers, is bailing on them too. Et tu, Brutus?

At its annual convention Friday in Los Angeles, AFT president Randi Weingarten is expected to announce that the union will underwrite $20,000 to $30,000 grants for teachers’ projects designed to rewrite and improve the Common Core standards, according to a press release.

While AFT stops short of outright opposing the Common Core, Weingarten has said that that option is not off the table. An hour-long open debate on Common Core is planned for the last day of the convention on Sunday, which could lead to a vote condemning the Common Core in its entirety. Some of AFT’s local chapters, including Chicago, have called for the union to end its support for Common Core entirely.

The AFT’s decision to distance itself from its once-avid support for the Common Core marks a major—and, some say, even potentially lethal—blow to the standards, which the White House has emphasized as its key priority in education.

The real danger is not that the Common Core will be thrown out entirely, but that state policy directors in charge of implementing the standards will be cowed by what they see as a groundswell of anger from teachers, said Michael Brickman, the national policy director at Fordham Institute, which supports the standards. If states choose not to tie the Common Core to teacher and students evaluations, all is lost, he said.

“It’s one thing to have really great standards on paper, but if they’re not tied to anything meaningful in terms of accountability, not a lot is going to improve,” he said.

Backers of Common Core at both the state and federal level have pointed at union support for the standards as validation for the policy. It’s too early to tell whether state policy makers will see the AFT’s withdrawal of support as a reflection of most teachers’ opinions, or of public opinion writ large.

“We do know that it’s a significant shift,” said Amy Hyslop, a policy analyst at New America Foundation who works on Common Core. “The AFT has objected to using the tests for evaluations, but this is first time they’ve been critical of the standards themselves.”

The AFT’s move comes less than two months after the National Education Association, the nation’s biggest teachers union, voted to demand the resignation of Education Secretary Arne Duncan. AFT has not yet considered joining NEA’s call for Duncan’s ouster, but say it’s not out of the cards.

The teachers unions, which strongly supported Obama’s election and once avidly backed the Common Core standards, have been increasingly disillusioned with the administration for years.

Their discontent is fueled in part by what many see as the herky-jerky implementation of Common Core so far. In some schools, teachers were asked to administer Common Core exams before they’d been given textbooks indicating what would be tested.

The unions have also criticized the standards for being too hard, rewarding a small number of “profiteering” companies that make the tests and books, and bringing punitive repercussions for both teachers and students. In many states, teachers’ performance evaluations and whether students are allowed to advance to the next grade level are tied to Common Core test scores.

In some ways, AFT’s announcement seems a long time coming. In April last year, AFT called for a moratorium on using Common Core test scores to judge teachers’ performances and determine whether students should be held back a grade level. In January, the New York state teachers union withdrew its support for the standards, citing major problems with implementation.

Weingarten, who has been a long-time public supporter the Common Core, has made a point in recent months of actively publicizing her members’ discontent over the program.

Brickman, and other education analysts, say the unions’ waning support is probably tied to the fact that they have faced several significant political blows this year. Last month, a California court ruled against tenure and other job protections. Two former Obama spokesmen have also launched a public relations campaign linking tenure with a failure of school reform. Under fire from both conservatives and Democrats, unions may be taking a defensive stance. “I think what they’re doing here is circling the wagons, going back to their bread and butter,” said Brickman.

Other analysts think AFT’s withdrawal of support is a calculated move designed to telegraph to the Obama administration that AFT’s backing is contingent on whether the administration pays attention to its other demands. For example, AFT has long called for the repeal of another federal law, No Child Left Behind, passed by the Bush administration, which mandates annual, multiple-choice tests for most elementary and middle school students.

The Common Core standards were designed in part as a response to unions’ discontent over what they called the “toxic testing” required by No Child Left Behind. The Common Core standards do not require rote, fill-in-the-bubble tests, as NCLB does, but instead involves more rigorous, hands-on problem solving, which is what the unions had demanded originally.

The Common Core standards describe what every student, kindergarten through high school, is expected to know. Forty-five states and the District of Columbia originally adopted the standards, but several conservative states have since dropped them. The Common Core will be implemented for the first time next school year, with teacher evaluations and student progress linked to the tests in 2015-16–which leaves plenty of time for in-fighting until then.

TIME

Telecom-Funded Congressional Group: Don’t Regulate Telecom Industry!

At an event funded by the telecom industry, organizations funded by the telecom industry argue against – wait for it! – regulating the telecom industry

The non-profit Congressional Hispanic Leadership Institute (CHLI) hosted an event on Capitol Hill Wednesday during which an impressive line-up of tech policy analysts argued against strictly regulating the telecom industry.

Consumer and public interest groups have called for the Federal Communications Commission (FCC) to re-categorize Internet service providers, like Comcast and Verizon, so that strong “net neutrality” rules, requiring broadband companies to treat all content on the internet equally, can be enforced.

The speakers—who included academics, politicians and think tank analysts—argued such a move would hobble the open Internet, “cripple capital investment in the tech industry,” and harm Hispanic as well as other “minority and disenfranchised communities.”

It all sounded very dire. In fact, by the time the hour-and-half long event gave way to an evening reception, it was hard to shake the impression that if public and consumer interest groups get their way, the very fabric of modern society—technological innovation! equality! free speech!—would be torn asunder.

But before you run off and phone your Congressman, there’s one thing you need to remember: that event Wednesday was funded in part by the telecom industry.

You’d be forgiven for missing that fact.

Held in an elegant, wood-paneled room in the Dirksen Senate Building, the event was formally hosted by the Congressional Hispanic Leadership Institute (CHLI), a congressional group founded in 2003 to foster “a broad awareness of the diversity of thought, heritage, interests and views of Americans of Hispanic and Portuguese descent.” Among CHLI’s sponsors are the three biggest players in the telecom industry: Verizon, Comcast, and AT&T.

CHLI’s co-host, Ibarra Strategy Group, gets funding from Verizon.

The event was a part of CHLI’s “Congressional Briefing Series,” which is underwritten by Verizon, Comcast-NBCUniversal, AT&T, and Telemundo, a subsidiary of Comcast-NBCUniversal, as well as others, like Pfizer and AARP.

All of the event’s panelists happen to work, or recently to have worked, for organizations that are funded by the telecom industry. For example, Doug Brake, who has written numerous articles slamming calls for strong net neutrality rules, including one for Forbes, in which he dismissed net neutrality advocates as “paranoid bloggers,” is employed by the Information Technology & Innovation Foundation (ITIF), which, according to Reuters, receives funding from the telecom industry.

Two of the panelists were also affiliated with the Hispanic Technology & Telecommunications Partnership (HTTP), which has received funding from AT&T: Martin Chavez, the former three-term mayor of Albuquerque, is HTTP’s senior advisor. Jason Llorenz, who presented as an academic from Rutgers University, was recently HTTP’s executive director.

CHLI executive director Mary Ann Gomez told TIME that the event had nothing to do with its sponsors or their sponsors’ policy preferences; however, CHLI asks its sponsors to suggest themes for its yearly “Congressional Briefing Series.” CHLI also asks its sponsors to suggest the speakers who present at these events. All of CHLI’s sponsors underwrite all the events throughout the year, not just the panels that have to do with their policy interests, Gomez said.

So what’s this all about? For the last six months, public and consumer interest groups have been calling on the FCC to consider re-categorizing the telecom industry as a “Title II” industry, along with traditional phone companies. Advocates say that doing so would give the agency formal jurisdiction over broadband services—jurisdiction that has been challenged recently in the courts.

In 2010, the FCC passed net neutrality rules requiring broadband providers to treat all content that passes over its pipes equally, regardless of its source, but in January of this year, a federal district court overturned those rules on the grounds that the agency did not have jurisdiction over such services. The telecom industry has described the effort to re-categorize it as a “Title II” industry as a “radical” “nuclear option.”

So in May, the FCC proposed a new set of net neutrality rules that would allow web companies to pay broadband providers, like Verizon and Comcast, to deliver their content more quickly and in better quality than content from other sources. Netflix, for example, pays Comcast for access to a “fast lane” so that its content can stream more quickly.

The telecom industry says that “net neutrality” can exist simultaneously with such “paid prioritization agreements.” Consumer interest advocates such as Public Knowledge say that’s hooey. “Allowing rich companies to pay for fast lanes, while the rest of us have to compete for the same congested lane—that’s not net neutrality,” said John Bergmayer, a senior counsel at Public Knowledge.

The FCC is accepting public comments on its proposed net neutrality rules until July 15. At least we know now where CHLI stands.

TIME Courts

Supreme Court Deals Public Unions a Blow

Supreme Court Delivers Decisions Against Aereo And Rules In Favor Of Cellphone Privacy
The U.S. Supreme Court is shown on June 25, 2014 in Washington. Win McNamee—Getty Images

In sharply-divided 5-4 decision

The Supreme Court decided Monday that public sector unions cannot collect “fair share” fees from non-union-members, in a 5-4 decision that dealt unions a sharp blow.

The much-awaited decision limits, but does not reverse, the court’s well-trodden ruling from 1977, known as Abood. In that case, the court found that requiring non-union-members to pay “fair share” fees did not violate workers’ First Amendment rights, so long as those fees do not go to advancing specifically “political or ideological” ends.

The decision, written by Justice Samuel Alito, marks a loss for public sector unions, which may see their coffers and power depleted in coming years, although it’s not the worst-case scenario that many labor activists feared. The ruling stopped short of finding all “fair share” dues unconstitutional. It also does not affect all full-time public employees, but only a category called “partial public employees,” which includes a growing sector of home heath care workers.

The decision also marks a victory for the anti-union group, National Right to Work Legal Defense Foundation, which is backed by many hardline conservatives, including the Koch family. Representing the plaintiff, the Legal Defense Foundation argued that requiring non-union-members to pay some “fair share” union fees was the same as requiring them to pay to support “political or ideological ends.” Their argument hinged on the idea that, in this day and age, any involvement with a union is inherently “political or ideological.”

During oral arguments in January, Justice Anthony Kennedy posed a series of hard questions about the harm done to the workers who did not support the existence of the union and yet were required to pay union fees, although he stopped short of suggesting he thought it was a First Amendment question. Justice Stephen Breyer worried that “the courts of the United States are going to fashion, using the First Amendment as their weapon, a new special labor law for government employees.”

The ruling is arguably the most significant labor law decision since the 1980s and may significantly weaken many public sector unions across the country by essentially placing them under the same rules that exist in “right to work” states. In “right to work” states, it is illegal to require workers in most sectors to pay any union fees. In such states, labor unions’ power has dwindled precipitously in the last three decades; public sector unions are the only unions that remained relatively strong across the country. It’s particularly significant for the home health care industry, which the Bureau of Labor Statistics expects to grow by roughly 70 percent in the next decade.

This case, Harris v. Quinn, dealt with home care workers in Illinois who care for the disabled. The plaintiff, Pamela Harris, cares for her adult son who suffers from a rare genetic disorder. In that capacity, Harris receives a Medicare check to act as her son’s caregiver. Because her paycheck is from the government, she is considered a partial employee of the state, and therefore represented by the union Service Employees International Union (SEIU) Healthcare Illinois-Indiana.

According to a contract between SEIU Healthcare and Illinois, and about 10 other states, home care workers were obligated to pay fees to SEIU to cover the expenses associated with bargaining, whether or not they were union members. Non-union-members also benefited from union-negotiated contracts. Since organizing in 2003, home care workers’ rages got bargained up from $5 an hour to $11.85 an hour, and will rise to $13 in December, according to Lydia DePillis at the Washington Post.

Like many others like it, the SEIU’s contract with the states was designed to avoid freeloading and drew its legal foundation from the court’s decision in Abood. But in this case, Harris and her fellow plaintiffs argued that being required to pay union fees amounted to “forced association” with a group with whom they may disagree, which amounts to a violation of their First Amendment rights.

The plaintiffs’ argument was built largely on an often-revisited caveat within the 1977 Abood decision, in which the court specified that while non-union members could be required to pay fees for collective bargaining, their money could not be used in any way to support a union’s political or ideological activity. Under that standard, forcing a worker to pay to support a certain variety of political speech—rather than economic bargaining—would be a violation of their First Amendment rights.

Over the last 37 years, there have been repeated legal challenges questioning where, exactly, that line is drawn, but the court has repeatedly upheld its decision in Abood. The decision today, while not overturning Abood, significantly limits the scope of that decision which may have serious ramifications for many unions that collect “fair share” fees.

TIME Law

A Supreme Court Guide for Where to Stand When Protesting

A Supreme Court ruling raises questions about what's allowed, and what's not

The Supreme Court ruled Thursday that a Massachusetts law mandating a 35-foot “buffer zone” around abortion clinics is unconstitutional because it limited speech on sidewalks and other “public fora.”

But in dozens of other decisions over the last 30 years, the court has held that buffer zones can be constitutional. Even if they’re outside medical facilities. And even if they encroach on public fora. So what gives? How’s a protester supposed to know where it’s constitutional to protest and where it’s not?

Here’s a quick-and-dirty guide on when and where (constitutional!) buffer zones still apply:

Outside some local abortion clinics…

Justices Question Mass. Abortion Clinic Buffer Zones
A yellow line is painted on the sidewalk and pavement surrounding Planned Parenthood Clinics at 1055 Commonwealth Ave., Boston, Jan. 15, 2014. David L. Ryan—Boston Globe/Getty Images

While the court’s decision Thursday will almost definitely lead to legal challenges to existing buffer zone laws, cities and counties from San Francisco to Pittsburgh to Buffalo will probably keep them on the books. Because many of these local laws are narrowly written and target specific clinics or medical facilities, they may not be affected by today’s ruling, in which the justices primarily objected to the broadness of the Massachusetts law—the only state-level statute in the country. In Portland, for instance, protesters cannot come within 39-feet of the entrance to one specific Planned Parenthood building.

Outside hospitals and other medical facilities

HEALTHONE NORTH SUBURBAN MEDICAL CENTER
HealthONE & North Suburban Medical Center in Thornton, Colo. PR Newswire/AP

In 2000, the Supreme Court upheld a Colorado law mandating a 100-foot buffer zone around the entrance of a “health care facility.” The law also banned protesters from “knowingly approach[ing] within 8 feet of another person” in order to hand her a leaflet or handbill, or “engage in oral protest.” This is an interesting case because it’s very similar to the case that the court decided today, and the justices came to the opposite conclusion, and yet they did not overrule it. Why? It’s not entirely clear. The legal differences between the two cases have legal scholars scratching their heads.

On or Near Military Bases…

Memorial Held At Ft. Hood For Victims Of Last Week's Shooting
U.S. Army soldiers salute during the national anthem at Fort Hood military base in Killen, Texas on April 9, 2014. Erich Schlegel—Getty Images

Earlier this year, the Supreme Court ruled that it was perfectly legal to shoo an anti-war protester away from a military base in California that he’d already been kicked out of once. It didn’t matter, the justices said, if the protester stood within a clearly marked “designated protest area.” In that case, the court decided on statutory grounds that all the land owned by the Air Force was considered “the base,” and the protester had been kicked off “the base.” So even though the protester now wanted to stand within an easement designed for public protest, he was out of luck. The court left the question of whether that violated the First Amendment to the lower court.

At Military Funerals…

Last Trip Home: Family Mourns Soldier Killed In Friendly Fire Incident In Afghanistan
Soldiers carry the casket of U.S. Army Pfc. Aaron Toppen from Parkview Christian Church following his funeral service on June 24, 2014 in Mokena, Ill. Scott Olson—Getty Images

The Supreme Court decided in 2011 that the Westboro Baptist Church was allowed to protest military funerals on the grounds that “even hurtful speech” got First Amendment protections. The court, however, gave legislatures explicit permission to pass buffer zone laws restricting people from protesting outside cemeteries and funeral homes. At least 41 states took them up on the offer, and last year, U.S. Congress passed a sweeping law on veterans’ rights, one part of which prevented demonstrators from picketing a military funeral within two hours before or after the service, and from coming within 300 feet of grieving family members.

Outside Places of Worship…

Church
United Methodist church, Massachusetts. John Humble—Getty Images

While there hasn’t been a Supreme Court case on the matter, many states have laws on the books restricting protestors from getting too close to all kinds of religious sanctuaries, including mosques, churches, synagogues, and temples. Those buffer zones range in size from a few feet to shouting-distance.

At Polling Places…

DC voters head to the polls in the Democratic Primary for mayor
Democratic voters wait in line at the Eastern Market polling place to vote in the Democratic primary for the District’s mayor race in Washington, April 1, 2014. The Washington Post/Getty Images

In 1991, the Supreme Court upheld a Tennessee law restricting protesters, campaign staff or others from coming within 100 feet of the entrances to polling stations to solicit votes or display campaign material. In that controversial 5-3 decision, the court found that since the Tennessee law didn’t block out political messages entirely—just within a narrow buffer zone—it passed muster under the First Amendment.

When the President is Nearby…

Barack Obama, William M. Knight
President Barack Obama returns a salute from Col. William M. Knight as he steps off of Air Force One in Andrews Air Force Base, Md, May 9, 2014. Carolyn Kaster—AP

At a campaign event in Oregon in 2004, President George W. Bush’s Secret Service agents forced anti-Bush demonstrators, who had gathered on a public sidewalk, to stand farther way; however, they did not move a group of pro-Bush demonstrators—much to the chagrin of the American Civil Liberties Union, which took the case all the way to the Supreme Court. Just last month, the justices decided that the lawsuit could not go forward because the agents themselves could not be held liable. That anti-climactic decision left open the question of what rights protesters have in demanding proximity to the president.

At Political Conventions…

US Campaign 2012
President Barack Obama onstage at the Democratic National Convention at Time Warner Cable Arena on September 6, 2012 in Charlotte, N.C. Charles Ommanney—Getty Images

Every four years, the Republicans and Democrats hold their big, glitzy conventions and every year, hordes of protestors are herded around by police, prevented from coming within a few hundred feet of the entrances, and otherwise treated like chopped liver. In light of today’s court decision, do those impromptu buffer zones violate protesters’ First Amendment rights? Erwin Chemerinsky, a top lawyer on matters of free speech, calls that “a really interesting question,” but concedes that “we just don’t know yet.” Challenges to those laws have never made it to the Supreme Court.

Outside the U.S. Supreme Court itself…

Treasury Secretary Lew Speaks At Making Home Affordable 5th Anniversary Summit
Pro-life activists gather outside the U.S. Supreme Court June 26, 2014 in Washington, DC. Win McNamee—Getty Images

Last year, the Supreme Court issued a new regulation banning demonstrators from doing their thing on the marble plaza in front of the Supreme Court building in Washington, DC. The new regulation was in response to a federal judge’s decision last year that a previous regulation barring protests on the plaza was unconstitutional. He cited previous Supreme Court rulings that laws barring demonstrations on court property are unconstitutional, but the court’s marshal says the new regulation is necessary in order to ensure “unimpeded ingress and egress of visitors to the court” and maintain the appearance that SCOTUS is a “body not swayed by external influence.”

TIME Supreme Court

Supreme Court: Abortion ‘Buffer Zones’ Violate Freedom of Speech

Anti-abortion protestors hold up signs as they celebrate U.S. Supreme Court ruling against protective buffer zones around abortion clinics, outside the Court in Washington
Anti-abortion protestors celebrate the U.S. Supreme Court's ruling striking down a Massachusetts law that mandated a protective buffer zone around abortion clinics, outside the Supreme Court in Washington June 26, 2014. Jim Bourg—Reuters

The ruling is a victory for protesters who seek to picket outside of abortion clinics

The Supreme Court ruled Thursday that putting up “buffer zones” around abortion clinics is a violation of the First Amendment.

The decision, which reversed a lower court ruling, found that a Massachusetts law that imposes a 35-foot buffer zone around abortion clinics puts an unconstitutional limitation on protesters’ freedom of speech. Written by Chief Justice John Roberts, the unanimous decision in McCullen v. Coakley is an immediate victory for pro-life groups, which have fought hard for the right to protest outside of abortion clinics, and a loss for some pro-choice groups that sought to provide blanket protections for people attempting to enter and leave such facilities.

First Amendment purists on both sides of the ideological divide will also likely count the decision as an unadulterated “win” as it calls into question the constitutionality of other buffer zones, as well as other blanket restrictions on protesters’ movements.

The court objected to the notion of buffer zones in part because such broad perimeters “burden more speech than necessary” by excluding “petitioners” (“not just protesters”) from public sidewalks, streets, and other public thoroughfares, “places that have traditionally been open for speech ac­tivities and that the Court has accordingly labeled ‘traditional public fora.’”

Buffers zones deprive petitioners “of their two primary methods of com­municating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas,” the court wrote.

But the decision hardly creates a “free-for-all” for protesters outside abortion clinics or anywhere else. The court left open the possibility that states can pass specific, “narrower” laws designed to protect people entering and leaving abortion clinics, or to ensure the safety of the crowd or others. For example, states can pass laws allowing police offers to force protesters to create an aisle through which a patient or doctor can pass.

The decision also left open the possibility that a state could pass a law entirely banning protests at abortion clinics—but only if it demonstrated that narrower measures had not worked, and that patients and employees were being illegally prevented from accessing a legal establishment.

“[E]ven in a public forum. . . the government may impose reasonable re­strictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a signifi­cant governmental interest, and that they leave open ample alterna­tive channels for communication of the information,’” the court held.

This is the most significant decision related to abortion politics since 2007, when the court upheld a ban on some late-term abortions.

The Supreme Court will meet again on Monday for its last day of the term, when it’s expected to hand down two more hotly anticipated decisions—one on the Hobby Lobby case addressing the Obamacare contraception mandate and the other, Harris v. Quinn, on public sector unions.

TIME Supreme Court

Explaining Aereo’s Demise: Bad for Cord-Cutters, Good for Lawyers

Supreme Court Aereo
Chet Kanojia, chief executive officer of Aereo Inc., left, leaves the U.S. Supreme Court following oral arguments by Aereo Inc. and American Broadcasting Companies Inc. in Washington, D.C., U.S., on Tuesday, April 22, 2014. Bloomberg—Bloomberg via Getty Images

The Supreme Court ruled out one type of TV gizmo, but the question of how copyright law works in the cloud-computing age remains unresolved

The U.S. Supreme Court’s decision today in the much-awaited Aereo case leveled a gnarly blow to the growing population of “cord-cutters” and granted an unexpected boon to Washington lobbyists.

The decision limits cord-cutters’ choices in what is an already anemic landscape. As of now, people who want to watch TV without paying for cable or satellite television can subscribe to video streaming sites like Netflix or Hulu for a set price each month. Or they can purchase actual hardware, like Apple TV or Roku, which act like updated, Internet-connected versions of old-school set-top cable boxes.

But when it comes to negotiating copyright fees—the heart of the Aereo case—those much-celebrated “disruptive technologies” aren’t really all that disruptive at all. All of them, from Netflix to Roku, play by the entrenched industry’s rules, dutifully paying what’s known as retransmission consent fees (or “retrans fees”) to broadcasters and other content producers to transmit their shows to paying customers. Netflix, for example, paid AMC for the rights to offer binge-watch favorite “Breaking Bad.”

Aereo was the only company that side-stepped the industry entirely by refusing to pay any retrans fees whatsoever. Aereo argued that it was merely facilitating people’s established right use an antenna to capture “free-to-air” broadcast signals passing through public airwaves. For the last 30 years, the court has interpreted the Copyright Act to protect people’s right to watch broadcast TV captured over an antenna at home. So long as that TV watching experience constituted a “private performance,” within the definition provided by the law, broadcast companies could not demand payment from people, the court held.

But on Wednesday, the court did not buy Aereo’s argument. Its decision not only obliterated Aereo’s business model, it also threw wide-open the door for new questions about certain passages in the Copyright Act. What is the definition of a “private performance” anyway? Why is it a “private performance” if I put an antenna on my roof, capture broadcast signals, and save them onto my DVR player to watch later, and it’s not a “private performance” when that antenna is 20 miles away in Aereo’s antenna farm, and I save those broadcast signals onto the cloud?

And with that—cue the lawyers!

In the ruling today, both the majority and dissenting opinions predicted future scuffles both in Congress and the courts over exactly this question. While the majority ruled that customers streaming broadcast TV through Aereo fell under the category of a “public performance”–not a private one–the three dissenting justices argued that Aereo had not, in fact, “performed at all.”

In both opinions, hundreds of words were dedicated to parsing the meaning of a “performance” and both ended up leaving open the possibility that the court would have to hear more cases on the matter when new technologies continued to emerge. Both suggested that perhaps Congress would need to clarify the meaning of the law.

“We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us,” Justice Steven Breyer wrote for the majority. “Questions involving cloud computing, DVRs, and other novel issues not before the Court…should await a case in which they are squarely presented.”

That sort of deep ambiguity is music to the ears of lawyers and lobbyists. Over the next year or so, Washington should gird itself for hordes of well-paid lawyers to pore over the Copyright Act in an effort to interpret it—and particularly the definition of a “performance”—in such a way that it behooves their clients and, perhaps more to the point, squeezes out whatever competition has emerged in that rapidly developing space.

We should expect cloud computing companies, including Dropbox, Google and Microsoft, to try to ensure that the definition of “performance” does not expand to include every time someone “plays back” a file on one of their services. We should also expect that other industries, particularly those that gain from strong copyright laws, like the Motion Picture Association of America, will try to make that the definition of “performance” as broad as possible in order to create legal concerns for cloud computing companies that allow users to store files without checking for copyright violations.

Whether Aereo will be around to see the other shoe drop remains to be seen. While most analysts agree that Aereo will be lights out by the end of the summer, the company seemed unwilling to throw in the towel. “Our work is not done,” Aereo CEO Chet Kanojia said in a statement following the decision “We will continue to fight for our consumers and fight to create innovative technologies.”

TIME Technology & Media

Supreme Court Rules TV-Streaming Startup Aereo Violates Copyright

Aereo Supreme Court
Aereo CEO Chet Kanojia leaves the U.S. Supreme Court after oral arguments on April 22, 2014 in Washington, DC. Alex Wong—Getty Images

A victory for broadcasters and a defeat for Aereo

A company that grabs over-the-air broadcast TV signals and lets consumers pay to store them online and watch on their computers is violating copyright law, the Supreme Court ruled Wednesday.

The court’s ruling, in a hotly awaited decision, is a potentially fatal blow for the small, Brooklyn-based TV-streaming startup Aereo, and a victory for traditional broadcast companies like NBC, ABC and CBS.

In a statement, Aereo CEO and founder Chet Kanojia described the decision as a “massive setback for the American consumer” and worried that it “sends a chilling message to the technology industry.” The consumer interest group Public Knowledge also expressed concern that the decision “leaves consumers beholden to dominant entertainment and cable companies that constantly raise prices and gouge consumers.”

The 6-3 decision centered on the idea that Aereo, despite its claims to the contrary, should be subject to the same rules governing how cable and satellite companies pay to retransmit the content from broadcast companies’ signals. The majority of justices found that “behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly.” It has been infringing on broadcasters’ copyright by transmitting their public signals without paying for those rights, the justices ruled.

Media mogul Barry Diller, who is one of Aereo’s primary backers, conceded that the battle was lost. “We did try, but it’s over now,” he told CNBC Wednesday morning. Meanwhile, National Association of Broadcasters trade association, along with broadcasters like 21st Century Fox, commended the Court’s decision, calling it a victory for copyright law.

“Today’s decision sends an unmistakable message that businesses built on the theft of copyrighted material will not be tolerated,” wrote NAB President and CEO Gordon Smith in a statement.

Cable and satellite companies pay “retransmission consent fees” to broadcast companies in order to retransmit what the court calls a “public performance” of TV content. The court found that Aereo’s unique business model was designed to exploit a loophole in copyright law.

Aereo owns tens of thousands of itty-bitty antennas, each of which is about the size of coin, and each of which is rented to individual subscribers for a fee of about $8 a month. Using those tiny antennas, Aereo captures free, over-the-air broadcast signals and saves the content to the “cloud.” Paying customers stream that content through an Internet connection on demand. Aereo argued that since it operated differently than other cable and satellite companies, it did not have to pay broadcasters so-called “retrans fees” to deliver their channels to customers. Aereo said it was simply helping customers to snatch broadcast signals from the public airwaves, which, it argued, is a “private performance” under the Copyright Act.

Aereo’s business model was based on the premise that it’s legal for anyone to purchase an antenna, put it on the roof, capture local broadcast signals, and then watch those available stations for free. In the 1980′s, the Supreme Court also decided that it’s legal to record the broadcast signals captured through an antennae using equipment like VCRs. So long as consumer are not recording those broadcast signals to play during a “public performance,” such recording is legal, according to past court decisions.

In this case, which came before the Supreme Court in April, Aereo’s lawyer David C. Frederick argued that the company was not “performing” at all. He described Aereo as nothing more than an “equipment provider.”

In a dissenting opinon, Justices Antonin Scalia, Clarence Thomas and Samuel Alito agreed with Aereo. Scalia wrote in dissent that Aereo’s business model does not constitute a “performance” at all, within the meaning of the Copyright Act.

But the majority decided that Aereo—a commercial enterprise with paying customers—was legally different than an individual capturing those signals with his or her own antenna and saving them onto a physical DVR.

The decision sides with the broadcasters, which were backed by the Department of Justice. They argued that Aereo’s business model was obviously designed to exploit a loophole in the Copyright Act. ABC’s lawyer Paul D. Clement argued that by capturing copyrighted television programming and then transmitting it back to thousands, or tens of thousands, of users, Aereo is acting exactly like a cable company and should pay retransmission fees.

The decision could have implications for cloud computing, including popular applications like Dropbox or iCloud, which allow customers to save files, including movies and TV shows, onto the “cloud” and then access them again at anytime with an Internet connection.

Aereo’s lawyers argued that if the Court determined that when someone plays back a file he or she saved on the cloud that constitutes a “public performance,” then that would put cloud computing companies, like Dropbox or iCloud, in a difficult position. Aereo argued that if cloud computing companies can be held responsible for determining if their clients originally purchased their files legally, then that would open them up to potentially fatal litigation.

In a statement following the decision, Aereo founder Kanojia said it was “troubling” that the Court explicitly said that if companies “are concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’” Kanojia suggested that statement could lay the groundwork for “a permission-based system for technology innovation.”

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