iClick2Media first comments for FCC New Inbox for Open Internet Comments

Monday, April 28, 2014 FCC c/o Chairman Wheeler - Chairman 445 12th Street SW Washington, DC 20554 Dear Chairman Wheeler: The overall goal of telecommunications policy is to maximize efficiency through competition. The logic of competition and antitrust law in the United States is to guard against restrictions and impediments to competition that are not likely to be naturally corrected by competitive forces. As an alternative to antitrust and competition law, economic regulation has been established in three exceptional case: (i) For those markets where it is clear that competition cannot be achieved by market forces; (ii) Where deviation from efficiency is deemed socially desirable; and (iii) Where the social and private benefits are clearly different. In each of these cases, it is clear that a market without intervention will not result in the desired outcome. In the first case, this is true by the definition of the category. In the second case, markets may lead to efficiency, but society prefers a different outcome, and intervention is necessary to achieve this. In the third case, maximization of social surplus does not coincide with maximization of the sum of profits and consumers’ surplus because of externalities. As the Commission begins to consider proposed rules to protect an Open Internet remember the past, present and the importance of our digital telecommunication’s future is connected to the founding cardinal principles of America “The Land of the Brave and Home of Free”. Four things to consider and remembers as you prepare your questions about how best to ensure the Internet remains and open platform for innovation and expressions. The 1st is the Telecommunications Act of 1996; 2nd is the Unintended Consequences of the Digital Millennium Copyright Act (DMCA), 3rd Prometheus v. FCC and finally SirusXM. 1. The Telecommunications Act of 1996 was supposed to usher in a new market that everyone could and should benefit from. Though this was the first major reform since the original 1934 Telecommunications Act and was necessary because telecommunications sector crystallized changes that had become necessary because of technological progress. The radical transformation of the regulatory environment and market conditions that was taking place as a result of the 1996 Act has and will continue to occur in a digital market place. The Telecommunication Act of 1996 aims was to "preserve and advance universal service [254(b)]. This meant: i. High quality at low rates. ii. Access to advanced services in all States. iii. Access in rural and high cost areas at comparable prices to other areas. iv. Supported by "equitable and nondiscriminatory contributions" by "all providers of telecommunications services." v. Specific and predictable mechanisms to raise the required funds. vi. Access to advanced telecommunications services for schools, health care, and libraries. However, though the purpose of the Act had good intentions but the effect created a bigger gap causing a De facto Censorship. In a study done by S. Derek Turner Research Director of The Free Press entitled Off The Dial: Female and Minority Radio Station Ownership in the United States explains because of the 1996 Telecommunication Act, media consolidation is one of the key factors keeping female and minority station ownership at low levels. As consolidation cuts back continue to occur and the a limited number of stations become available, women and people of color have fewer chances to become media owners and promote diverse programming. 2. Since DMCA was enacted the “anti-circumvent” provision codified in section 1201 of the Copyright Act, has not been used a Congress envisioned. Congress meant to stop copyright infringes from defeating anti-piracy protections added to copyrighted works and to ban the “Black Box” devices intended for that purpose. In practice, the anti-circumvent provisions have been used to stifle a wide array of legitimate activities, rather than stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities: i. DMCA Chills Free Expression and Scientific Research: Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felton’s team of researchers, and prosecution of Russian programmer Dmitry Sklyarove have chilled the legitimate activities of journalists, publishers, scientists, student, programs and members of the public. ii. The DMCA Jeopardizes Fair Use: By banding all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the movie industry’s use of encryption on DVDs has curtailed consumers’ ability to make legitimate, personal-use copies of movies they have not purchased. iii. The DMCA Impedes Competition and Innovations: Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its iPhone and iPod to Apple’s own software and services. iv. The DMCA Interferes with Computer Intrusion Laws: Further, the DMCA has been misused as a general-purpose prohibition on computer network access, a task for which it was not designed and to which it is ill suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company’s computer system through a virtual private network (VPN). 3. In its landmark Prometheus v. FCC decision, the Third Circuit chastised the FCC for ignoring the issue of female and minority ownership. But since then, the FCC has done very little to address the issue. The FCC has abdicated its responsibility to monitor and foster increased minority and female broadcast ownership. 4. Finally when Sirus XM announced it’s Voluntary Commitments for channels to be set aside many who were “Off The Dial” were excited about the opportunity to become their own host, Dj’s and content creator. But those dream were cut short when the FCC decided after two years to give the channels back to Sirus XM even thought part of the order was designed to keep Sirus XM from making that decision. Each of the items mention all had good intentions but failed to bring about equality, as it was suppose too. Now we have a chance to make the proverbial playing field and actual playing field were all Bloggers, Tweeters, Facebookers, and Pinterest communities are all created equal. Mr. Chairman, like you state in your book “Mr. Lincoln’s T-Mails are a chronicle of how one man, even while confronted by a civil war, applied new technology to define a new kind of electronic leadership.” My company and joint venture partners are too fighting a battle to stay independent, competitive and relevant in the current market with other content providers and creators. This can only be achieved by maintaining an equal Open Internet playing field where big media corporation, small start-ups (like iClick2Media), creative partnerships and Mom & Pop operations can compete using the same speed to bring its content to the end user. Entrepreneurialism for many has become a way of life after the credit crisis. We are all doing our part to improve the job market and continue to develop businesses centered on the openness of the Internet. My partners and I look forward to answering questions about how best to ensure the Internet remains an open platform for innovation and expression for everybody. My warmest regards, Malik Christopher Shakur CEO iClick2Media 264 S. La Cienega Blvd Suite 565 Beverly Hills, CA 90211 Digital Distribution Partner Travis Fox CEO & Founder 3Form Media 3130 S. Harbor Blvd, Suite 300, Santa Ana, CA 92704.