Friday, September 07, 2012

Video Report Promises End to FCC's Non-Compliance with Federal Law

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Perspectives from FSF Scholars paper, "FCC's Video Report Reveals Disconnect Between Market's Effective Competition and Outdated Regulation."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Actually, the FCC's outdated Video Competition Report problem was worse still.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.