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McAdams On: A Program Access Free-for-all

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 to kids.

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.