McAdams On: A Program Access Free-for-all
3/12/2010 3:37:42 PM
I have to wonder what TV would look like with no
regulation whatsoever. The whole regulatory framework seems designed to keep an
army of attorneys employed. I have nothing against attorneys. Some of my
closest friends have attorneys. Without attorneys, there would be a large void
in the world now occupied by abstruse, circular logic.
Such seems the logic that dictates what’s on TV where and when and why and how
and how much and for whom. E.g., cursing and privates are OK on cable-only
networks but not on broadcast networks, though both are generally delivered to
the same households the same way. Cable nets can pretty much program whatever
they want whenever they want to, while broadcast networks have to have to cater
Cable networks, on the other hand, have to be provided in some capacity to all
comers. Broadcast networks don’t, though they can use that power to extract
fees for their signals. Cable rates are regulated; broadcast TV is free and TV
over the Internet is a legal dance in progress.
The laws governing television are based a good deal on assumptions; about who
is watching when, and what they have a “right” to watch. The program-access
rules upheld today by the federal appeals court in D.C. infers that people have
a “right” to watch whatever they want on the pay TV system of their choice. For
the life of me, I can’t figure out why.
The federal government does not assure that I have access to sunlight on the
east side of my home. It does not assure that my car is equipped with satellite
radio. It can barely keep me in water suitable for drinking and air suitable
for breathing. Why, for example, should the federal government make Comcast
sell E! Entertainment to Time Warner Cable so that I, Deborah, am not deprived
of, God help me, “Keeping Up with the Kardashians?” This, to me, is akin to
praying the wind won’t blow on Sunday because I have a bicycle ride scheduled.
I have this thing about more important uses for the powers that be.
The D.C. federal appeals court ruled 2-1 upholding the FCC’s program-access
rules, meaning Comcast has to provide its networks to AT&T, Verizon, Dish
Network, SureWest Communications, Canby Telephone and anything in between. I
understand that folks running the smaller operations need access to programming
to survive, but is there really no other way to compete than forced access? There are surely areas that Comcast does not intend to serve.
Judge Brett Kavanaugh of the D.C. court wrote the dissenting opinion in the
program-access ruling. He said the Supreme Court “repeatedly ruled” that pay TV
companies and networks are protected by the First Amendment. Precedent provides
for regulating those entities only where “important” or “substantial”
government interest is at stake. Judge Kavanaugh didn’t think that forcing
cable operators to share programming served the government interest at the
necessary level, and neither do I. There’s other ways to compete in the multichannel
video market. Picture quality, a la carte availability and price are three that
come immediately to mind.
Even the judge who wrote the majority opinion said program-access rules were
likely to end. Hopefully when they do, we’ll see what type of competitive
innovation they’re now holding back.