Shortcomings
to the FCC's new Video Competition Report are the subject of my Perspectives from FSF
Scholars paper, "FCC's Video Report Reveals Disconnect Between
Market's Effective Competition and Outdated Regulation." In that paper I briefly alluded to the fact
that the new Video Report puts
the FCC back into compliance with federal law – at least for now. Given the
FCC's recent history in this area, it is a bigger deal than one might think.
Section 628(g) of the Communications Act states that "The Commission shall…annually report to Congress on the status of competition in the market for the delivery of video programming." But the FCC issued no Video Competition Report in the first three-and-a-half years of the current Administration.
Instead the FCC became
sidetracked by its own agenda. It expended considerable energy and resources
imposing controversial new mandates like network neutrality regulations and
data roaming regulations. Those mandates have been vigorously criticized for
being beyond the FCC's delegated statutory authority. During that time the FCC
likewise devoted significant time and attention to imposing new procedural
requirements regarding regulatory forbearance. Nowhere required by statute,
those new forbearance rules and standards have had the practical effect of
making it exceedingly difficult to make use of a key tool designed by Congress
to grant relief from legacy-era telephone regulations. The FCC also expanded
certain program access regulation involving terrestrially delivered video. And
it issued a slate of proposed rulemakings to alter or, in some cases, expand existing
video regulations.
While the FCC busied itself
with its own pro-regulatory undertakings, its express statutory duty to
annually release Video Competition Reports was ignored. The FCC claims to be data-driven in its policymaking. And
FCC policy typically relies on the data it collects in its reports. But for
more than three-and-a-half years, the FCC offered no report to Congress about
the video market's current competitiveness upon which to base its video-related
regulatory rulemakings, adjudications, and litigation.
Actually, the FCC's outdated Video
Competition Report problem was worse
still. FSF President Randolph May and I briefly noted this problem in our Perspectives paper "Accelerate New Video Breakthroughs by Rolling Back
Old Regulations." The 13th
Video Report, predecessor to the
new Video Report, was itself
inexcusably late. Released in 2009, the 13th Video Report came nearly three years after its respective predecessor. Even then the
13th Video Report provided little
insight. Due to its being mysteriously withheld from the public after its
internal approval by a vote of the FCC's Commissioners in 2007, the 13th Video
Report contained data and
information current as of 2006. And questions surrounding alleged manipulative
use of data and strong agency bias in called the reliability of 13th Video Report into question.
Thankfully, with the new Video
Report the FCC can now move beyond that
debacle.
Most important of all, the
data contained in this new Video Report presents a video market that is innovative and competitive. But as my Perspectives paper points out, the data makes all the more
evident the disconnect between the video market's competitive conditions and
the outdated regulations that restrict it.
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