This is not a test

You know how every time there's a fire drill in your office, most of the people don't move or do anything because they all know it's probably not a real fire, and even if it was no one was really paying attention during that fire drill safety class so they might as well continue doing those spreadsheets instead of ending up trapped in a fire-licked elevator?

Well, the FCC hopes you understand that at 2 p.m. today, you will also choose to ignore the apocalypse-sounding  warning that they will be testing out for the first time, even though there is a slight chance that the message you receive will not tell you that the end of the world is not actually nigh, and this is in fact, just a test.

From the FCC's website:

Background

The first nationwide test of the Emergency Alert System, or EAS, will take place at 2:00 p.m. (Eastern Standard Time) on November 9, 2011. The purpose of the test is to assess the reliability and effectiveness of the system in alerting the public.

What will people see and hear during the test?

Although the nationwide EAS test may resemble the periodic monthly EAS tests that most consumers are familiar with, there will be some differences in what consumers may see or hear, which is one reason for conducting a nationwide EAS test. During the test, the public will hear a message indicating “this is a test”. The audio message will be the same for everyone, however due to limitations of the EAS, the video test message may not be the same and may not indicate “this is a test”. This is due to the use of a “live” national code – the same code that would be used in an actual emergency. Also, the background image that appears on video screens may indicate “this is a test” but in some cases there may be no image at all.

So depending on your location, you may or may be told that what you are see or hearing is just a test of the first ever nationwide emergency system...something you'd think we would have perfected during the Cold War but no...it's good to get on it now. Not for any particular reason. Don't be alarmed. Also, FEMA workers are standing by. Our question is, how is that going to appear on the Internet? Will all computers with a modem go blank and show a screen that says, "Evacuate immediately and leave me behind?"

But according to AOL/HuffPo editor Saul Hansell, Patch is simply ahead of it's time. It's like building the railroad 150 years ago, he said on a panel about the Future of Media (unrelated to the "Future of Media" report by the FCC which Mr. Peters and Mr. Stelter refer to.) We assume he meant that Patch's infrastructure and influence will redeem its high overhead costs, but let's not forget that the transcontinental railroad was mostly realized by underpaid imported laborers, too.

If you get off on making and listening to smug prognostications, we suggest throwing your name in the hat for Columbia Journalism Review editor in chief. "The editor in chief position was made possible by a funder, and I think part of the idea is somebody who enjoys meeting funders and being on future-of-journalism panels more than I do. I would rather go to the dentist than be on a panel," CJR executive editor Mike Hoyt told Romenesko.

Traditional media companies, the FCC's "Future of Media Report" has nothing to offer you. [WSJ]

Time Warner is in talks to buy the American version of OK! magazine, which is like a British version of People, from owner Richard Desmond. [BSkyB]

NBCUniversal will pay Blackstone $1 B for their stake in Universal Studios Florida, giving them full control of the Wizarding World of Harry Potter, at last. [Los Angeles Times]

Watch Jon Stewart cut his wrist on set while taping a Weiner sketch. It'll make sense when you get to the part with the blender.  [Media Decoder]

Page One director Andrew Rossi says Bill Keller had the air of someone about to "throw in the towel." [Esquire]

kstoeffel@observer.com :: @kstoeffel

In a letter to shareholders CEO Reed Hastings made it plain the company won't take this lying down.

"Tomorrow, we’ll publish on our blog ongoing performance statistics about ISPs collected from our 20 million subscribers detailing which ISPs provide the best, most-consistent high speed internet for streaming Netflix. We can tell you now, though, that for our subscribers streaming Netflix, Charter is the highest-performance ISP in the United States."

Yup, if cable companies want to play hardball with Netflix, they had better be prepared for their customers to get an eye opening look at just how good their service really is. 

Stand by for the full breakdown of ISP performance later today. 

UPDATE: The data is out on the Netflix Tech Blog. Charter is number one, but the data is really pretty hard to read. Seems like Time Warner and Comcast are right up there at the top as well. As far as a damning, dramatic data dump, Netflix is no Wikileaks.  

bpopper [at] observer.com | @benpopper

When the new rules were passed, The Observer noted that they were laying the groundwork for future legal challenges.  

F.C.C. chairman Julius Genachowski was hoping his compromise package would placate business interests. 

But as Aparna Sridhar, policy counsel for Free Press, told The New York Times, this lawsuit “demonstrates that even the most weak and watered-down rules aren’t enough to appease giant phone companies.”

Verizon has also asked for the case to be tried in D.C. under the same panel of judges who ruled against the F.C.C. in the recent Comcast case. So much for home field advantage.

bpopper at observer dot com | @benpopper

But the ambiguous language of the new rules and the different frameworks applied to landlines and mobile internet mean that corporations like Comcast will likely continue to treat data from certain companies differently and discriminate against sites and services that don't fit into their bottom line. 

"As we stand here now, the freedom and openness of the Internet are unprotected," Genachowski said. "No rules on the books to protect basic Internet values. No process for monitoring Internet openness as technology and business models evolve. No recourse for innovators, consumers, or speakers harmed by improper practices. And no predictability for Internet service providers, so that they can effectively manage and invest in broadband networks. That will change once we vote to approve this strong and balanced order."

It's true that the FCC's needed to define itself and its position, to throw down a gauntlet for the numerous court battles sure to come. But the language of today's ruling gives companies like Comcast the right to engage in "reasonable network management," while it also bans "unreasonable discrimination." In the rapidly expanding field of wireless internet, then, the FCC has given companies like Verizon and AT&T even more latitude to decide what is reasonable or not. 

As we have already seen in the dispute between Comcast and Level 3 over the enormous amount of traffic being sent by Netflix, the big internet providers aren't afraid to play hardball, clamp down on certain kinds of data and fight it out in court. 

The FCC should have set in stone the following simple rule: ISPs can charge whatever they want for data that travels over their networks, but cannot discriminate based on content, source or destination.

By giving corporations the right to "manage their networks," the FCC failed to accomplish both of its major goals. The more these big ISPs control which data flows across their networks and at what speeds, the less true competition will emerge between them. Removing real neutrality from these networks will thus discourage investment in new broadband infrastructure, while undercutting the egalitarian nature of the web which has driven so much innovation and enterprise in America. 

Ed Wyatt, the author of the article, explained the ramifications of the deal in the opening paragraphs, saying that it would,

...allow Verizon to speed some online content to Internet users more quickly if the content's creators are willing to pay for the privilege. The charges could be paid by companies, like YouTube, owned by Google, for example, to Verizon, one of the nation's leading Internet service providers, to ensure that its content received priority as it made its way to consumers. The agreement could eventually lead to higher charges for Internet users.

Google tweeted: "@NYTimes is wrong. We've not had any convos with VZN about paying for carriage of our traffic. We remain committed to an open internet."

A spokesperson told the Guardian: "The New York Times is quite simply wrong. We have not had any conversations with Verizon about paying for carriage of Google traffic. We remain as committed as we always have been to an open internet."

Verizon's denial was equally severe. In a post titled, "New York Times' Story is Mistaken," the executive director of media relations wrote:

The NYT article regarding conversations between Google and Verizon is mistaken.  It fundamentally misunderstands our purpose. As we said in our earlier FCC filing, our goal is an Internet policy framework that ensures openness and accountability, and incorporates specific FCC authority, while maintaining investment and innovation. To suggest this is a business arrangement between our companies is entirely incorrect.  

What's odd is that The Times wasn't the only news organization reporting on this, something that was noted by FastCompany. Bloomberg and the Wall Street Journal were too, citing their own sources on variations of the same news. Why did Google and Verizon single out The Times? Was there some way in which the Times story was "mistaken" that the Bloomberg and Journal stories weren't? Or did they just address The Times because they knew it would ring out as loudly as they needed it to, and they didn't want to draw unnecessary attention to the other reports.

The Times responded. Diane McNulty, a spokeswoman for the paper, was quoted in Romenesko saying that the paper was standing by the reporting, "which is based on information from sources in a position to know about the conversations. Google's comment about The New York Times story refutes something The Times story didn't say." They sent out a tweet to the same effect.

Then the paper published another story on the deal, not backing away an inch from its original reporting. Wyatt quoted the chairman of the F.C.C. saying it was "unacceptable" for companies like Verizon to charge for access to their fast lanes. He reported that a meeting-- the latest in what has become known as the "secret meetings"-- between the F.C.C. and Verizon, Google, and other big Internet companies that had been scheduled for Thursday was canceled as a result of "press reports."

Will Google and Verizon make more noise today?

The judges decided that the FCC's 2004 guidelines for what is indecent are "unconstitutionally vague." Also, given the amount of exposure that television audiences have to other unregulated media, it isn't fair to punish the networks with fines that have gotten as high as $325,000.

Specifically, the judges said the FCC isn't clear enough on what's permissible and what's not. In one instance, the FCC concluded that uttering a term to describe bull excrement in an episode of the police drama "NYPD Blue" was offensive. But apparently the expression for kissing another's derriere is permissible, the court noted.

The two main tests for indecency are: Does the material depict "sexual or excretory organs or activities"? And is it "patently offensive as measured by contemporary community standards"? Is a nipple an excretory organ or a sexual organ? And whose community standards are we using? None of these things have ever been black and white.

"The English language is rife with creative ways of depicting sexual or excretory organs or activities," the judges wrote. "And even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day."

"After failing to qualify for a Democratic presidential candidates debate on Monday in South Carolina, Cleveland Democratic Rep. Dennis Kucinich has filed a Federal Communications Commission complaint against host network CNN," reports the Cleveland Plain Dealer.

"The complaint accuses the network of 'arbitrarily establishing criteria' for the presidential debate, and asks the FCC to order Kucinich's participation," notes the Plain Dealer. "Television networks stopped inviting Kucinich to presidential debates after he fared poorly in early contests in Iowa, New Hampshire, Michigan and Nevada. His past legal efforts to force inclusion haven't been successful. The candidate filed an FCC complaint against ABC earlier this month when he was excluded from a candidates' debate in New Hampshire, and last week unsuccessfully petitioned Nevada courts to force MSNBC to include him in a debate."

But on Tuesday, May 4, he found a defender.

Not only a defender but a Republican, former Mayor Rudolph Giuliani. "I think Howard Stern is what he is," Mr. Giuliani told The Observer . "Everyone knows what Howard is like. They listen to his show and then they've made a decision that they enjoy his kind of humor. I think the F.C.C. or regulatory agencies have better things to look at than that. And I think it does get very close to inhibiting free speech."

Mr. Giuliani had sat with Howard Stern in his studio on West 57th Street three times in the last decade, and fielded call-ins, including on the two anniversaries of Sept. 11, 2001. He said he could not understand the reticence of political figures to speak on Mr. Stern's behalf.

"I'm not running for office and I never did quite understand that," the former Mayor said. "But maybe if I was running for office, I would feel somewhat different about it. I don't think so." Mr. Giuliani said he'd met Mr. Stern's parents during one on-air appearance. "I met his parents, who are the nicest people you ever want to meet," he said. "They are very, very sweet, nice, understated people."

Other than Mr. Giuliani, however, Mr. Stern has been in the wilderness, not quite a pariah, but not bathing in the warm power light on which the immensely successful can count in America. Few public officials-especially those in Washington, D.C.-have been willing to support the 90's "King of All Media" since he was dropped from six Clear Channel Communications radio stations in February and subsequently threatened with $1.5 million in fines for discussing sex acts with former Paris Hilton boy toy Rick Salomon.

On the one hand, Mr. Stern's fight is nothing new: Since 1990, the F.C.C. has proposed $4.5 million in fines against media companies for indecency, $2.5 million of which were against Mr. Stern alone, according to the Center for Public Integrity. But in an election year, during a war in Iraq, with a religiously inspired President intent on re-engineering the political center to the right, there appears to be little to lose for Republicans in attacking as a easy a stereotypical figure as Mr. Stern-an uninhibited Long Island Semitic O.C.D. sufferer does not seem to represent a crucial voting block for Mr. Bush-in consolidating a conservative core. While the F.C.C. works overtime to pin Mr. Stern to the wall-and if a Senate bill that limits commercial free speech passes, muzzles him for good-Mr. Stern has been left to flail and battle on the air with little political capital beyond his base. His recourse has been to line up his roughly 8.5 million listeners into a voting militia. "I call on all fans of the show to vote against Bush," Mr. Stern told his audience. "We're going to deliver the White House to John Kerry."

"We are in a war. It's a cultural war," Mr. Stern said on the air. "The Republican party used to stand for-and I supported this-less government in your life, less intervention in your life, less control of your bedroom and your private life. They no longer stand for that." Talking about the Senate bill, Mr. Stern said, "I look forward to the day because those guys will make me bigger than life."

Since he was dropped by Clear Channel, Mr. Stern's ratings have risen 22 percent in New York in the last three months.

But in Washington, D.C., Mr. Stern has met with relative silence.

Two weeks ago, the committee that runs the National Press Club in Washington voted down a proposal for Mr. Stern to appear as a guest speaker, according to two sources familiar with the situation. And, even though Mr. Giuliani was secure enough to back Mr. Stern, Democratic politicians, who are de facto aided by Mr. Stern's diatribes against the administration of George W. Bush-have been relatively silent. Neither Senator Charles M. Schumer nor Senator Hillary Rodham Clinton has spoken up for Mr. Stern, nor returned calls to The Observer by press time. But for Democratic pols, there seems to be too much to lose by getting close to Mr. Stern. Howard Wolfson, the former spokesman for Senator Clinton, now a partner at Glover Park Group, said it would have to be a very controlled environment for him to allow a client to appear on the show. "You'd want to think pretty hard about it, before you did it," he said. "I think it would probably require some alteration in the content of the show."

Governor George Pataki, whose election to office was heavily aided by Mr. Stern's support in both 1994 and 1998, also did not respond.

"I haven't heard from any of those people," said Don Buchwald, Mr. Stern's agent. "Since the Democratic National Committee has the luxury and importance of an editorialist named Howard Stern who is on their side, they kind of got their cake and are eating it too. Now they don't have to endanger anything, because they have Howard's very clear voice, who is very important to his constituency and will react to Howard being as lucid and vivid and intelligent and understandable as he is. So they got that."

At ABC, where Mr. Stern has a deal to produce a one-hour Barbara Walters–like interview special, Senator John Kerry's camp declined an invitation, said the show's producer, Lee Hoffman. "They weren't interested in doing the interview," said Mr. Hoffman, "and they haven't been particularly supportive of him."

Describing his conversation with Mr. Kerry's chief public-relations official, Stephanie Cutter, Mr. Hoffman said: "If any other person in America called and said, 'I want to do a one-hour interview with John Kerry, in prime time, on one of the four big networks,' the answer would have been, 'Yes, when can we do it?' So why is it that it was a no for us?"

"It's somewhat ridiculous that nobody wants to sit down and talk to somebody, who, in conservative numbers, is talking to 15 to 20 million unique Americans a week," said Mr. Hoffman. "I think it's insulting to the Howard Stern audience, which I'm a member of, and a lot of my colleagues are, so to suggest that all of us are too stupid to talk to a Presidential candidate."

"We told the Kerry people that-obviously we wouldn't clear questions with them-but we could assure them that this wasn't about his personal life," he said. "We really wanted to have a serious conversation on the issues that affect Howard's audience, which is First Amendment issues."

"The times that I appeared, we were always very careful to make sure what was happening when I was on, making sure it wasn't something terribly embarrassing or something you couldn't live with," said Mr. Giuliani. "And he was always very respectful. I think he knows the different times in which he's acting in different ways, and when to be appropriate and when to be inappropriate."

Mr. Hoffman was also angry that Michael Powell, the F.C.C. chairman, would not agree to be interviewed. "Why won't the F.C.C. chairman sit down with a broadcaster? This is what Howard is, a legitimate broadcaster, with that large an audience-it's outrageous behavior, it's behavior that you wouldn't have seen five or 10 years ago, when government officials felt they needed to be responsive to the electorate. Clearly they don't. That's what I find so offensive in all of this. At least have the courage to address that audience."

Mr. Stern's show, a mix of celebrity and political interviews, was first scheduled for May, but is now to be broadcast in November-very likely, said Mr. Hoffman, the week before the Presidential election on Nov. 7. Mr. Hoffman said he had been careful to outline Mr. Stern's seriousness in matters of politics.

In the past, Mr. Stern's audience has worked miracles for New York Republicans. Mr. Stern supported both Mr. Giuliani and Governor Pataki throughout the 1990's. In return, New York Republicans generally defended Mr. Stern. In 1992, New York Senator Alfonse D'Amato wrote a letter to the F.C.C. defending Mr. Stern against a fine levied against him, saying, "Government action to limit free speech, whether in response to the religiously motivated right or the politically correct left, is un-American."

But supporting Mr. Stern has always brought baggage. In 1993, running for Governor of New Jersey, Christine Todd Whitman phoned Mr. Stern on the air to get his endorsement. Mr. Stern suggested she campaign in a string bikini-a small indignity, considering she won. Later, Gov. Whitman named a turnpike rest area for Mr. Stern.

And certainly getting close to the man who made famous the Lesbian Dial-a-Date and the Kielbasa Queen takes a certain political fortitude, one that most Democrats don't seem to have right now as they try to skate through the culture-war.

"He's someone you're glad to have out there, but from a candidate's perspective you need to keep him at arm's length," said Steve McMahon former media strategist to Gov. Howard Dean. "Their economic interests are Democratic," he said of Mr. Stern's audience, "their cultural interests are Republican and voting behavior is Reagan Democrat. To the extent those people come back to the Democratic party, voting for a Democratic candidate or against a Republican, the effect is the same and it's all good for John Kerry."

Asked why political figures weren't coming out publicly in support of Mr. Stern, Mr. McMahon sounded somewhat like Mr. Kerry-who had already distanced himself from Mr. Stern's conflict by suggesting it was up to the station owners to accept and deny what they found acceptable: "It's not a question of Free Speech as much as one of propriety and appropriateness," he said. "The anti-vulgarity rules are pretty widely supported on the left and the right, and are not generally considered to be anti-first amendment since they don't govern what you can say, but only how you can communicate it when you are using a free license that is granted by the federal government for commercial purposes. This makes it commercial speech anyway, which is not protected to nearly the extent that political speech is protected."

In February, Mr. Stern was dropped from six Clear Channel stations in February under its new "zero tolerance" indecency policy. Two months later, the FCC threatened Clear Channel with $495,000 worth of fines for Mr. Stern's verbal freedom, which prompted the conglomerate to drop him for good. Mr. Stern's show, which airs in 35 cities, is the subject of another FCC investigation that might lead to a fine of as much as $1.5 million for the show's parent company, Infinity Broadcasting, according to a report by the New York Post .

The result: Mr. Stern's ratings have spiked. In Los Angeles, Mr. Stern's morning show finished No. 1 among adult listeners for the first time since 1995, according to the latest Arbitron ratings.

So far, Viacom president Mel Karmazin has been alone among powerful media figures in defending Mr. Stern. Said Mr. Buchwald, "There are a lot of industry people who I have been in contact with, and important people in the entertainment community, who have said, 'Gee, you guys are really fighting the good fight for all the rest of us. I really wish we could do more, but politically it isn't to our advantage at this moment.' Privately, people are in great support."

But the chieftains of heavily consolidated media empires like Viacom and NBC are wary of taking on the federal government, which they depend on for keeping their industry deregulated. With fewer companies controlling most of the media, regulating morality becomes easier for the FCC-and a bigger risk for media moguls to confront. On April 19, on CNBC's Kudlow & Crame r, Larry Kudlow asked NBC president Bob Wright if "is it possible that the country as a whole is becoming more culturally conservative and, therefore, wishes to raise rather than lower the bar on some of these decency standards?"

"Yes, it is, Larry," said Mr. Wright, "And we are in the business of listening to our viewers. So, yes, to the extent that we understand our viewers, then we have to pay attention to materials they like and dislike. That is part of what we do."

For Mr. Stern, it's all material. He has turned 20 percent of his show into a stage for countering what he described as a fight between corporate interests and individual expression. On April Fool's Day, Mr. Stern fantasized his future: "Cross and Lopez," a D.J. duo-their slogan, "Fun Without the Filth"-took Mr. Stern's air time, aired a Clay Aiken dating game, exalted Jay Leno, placated the F.C.C. It was the scariest radio prank since Orson Welles' 1938 The War of the Worlds Martian attack: a projection of a world where Mr. Stern's Louis XIV curls and horny idiosyncrasies were relegated to the closet, where Morning Zoo cookie-cutter noise suffused the airwaves, without black bras or free speech.

Watch what ABC does: Mr. Stern's show will make its November date, or not. Mr. Hoffman said Mr. Stern was interested in displaying his serious interviewing skills. "There's always been that side," he said. "He's always had serious interviews, which is why ABC made the deal. It's not all bathroom humor. A lot of it is smart and topical and edgy current events, and he has a world view that doesn't change. He is consistent. You can track his world view over 20 years. It's not expedient. He doesn't change for the sake of shock. The fact that he's the center of the story now doesn't change the fact that he's been talking about this stuff for 20 years."