When Congress has an opportunity to eliminate outdated,
unnecessary, and constitutionally problematic regulations, it should consider doing
so. Congressional legislation reauthorizing the Satellite Television Extension
and Localism Act (STELA) offers just such an opportunity.
Section 623 of the Communications Act contains basic tier
regulations that are relics of a long bygone cable "bottleneck" era.
Basic tier rate and must-buy regulations should be eliminated so that federal
communications policy can better match today's competitive market conditions. STELA
reauthorization legislation constitutes one plausible vehicle to clean out
outdated basic tier cable regulations. Congress should keep an open mind about
using STELA as a route to regulatory reform.
STELA is considered "must-pass" legislation because
it contains the framework for retransmission of broadcast TV content by direct
broadcast satellite (DBS) providers. Absent reauthorization, certain provisions
regarding broadcast TV, DBS, and cable video will sunset at the end of this
year.
Some suggest that Congress should keep the STELA bill
"clean." Here "clean" means extending provisions scheduled
to sunset at the end of 2014 while avoiding any reforms of legacy video
regulation. However, prior STELA reauthorization legislation included a variety
of provisions touching on video services. For example, the 2010 bill
reauthorizing STELA included directives to the Copyright Office regarding
filing fees, audits, and reports. It likewise permitted carriage of low-power
broadcast TV stations throughout local markets and modified cable statutory
licenses to address carriage of multicast broadcast TV streams.
Congress shouldn't be rigidly wedded to any artificial
principle in order to obstruct genuine regulatory reform. Rather, it's a sound
principle that burdensome government regulations premised on market failure
should be reduced or eliminated where competitive market conditions actually
emerge. Whether necessary reforms are to take shape through legislation that is
broad-based or narrowly targeted, immediate or incremental, typically involve
context-specific judgments of expediency. Leaving expediency judgments aside,
STELA reauthorization presents a fitting instrument for clearing away
government restrictions on cable services that market changes have rendered
unjustifiable.
For example, Congress could insert into STELA reauthorization
legislation a provision to eliminate basic tier cable rate regulation. Under
Section 623, the FCC is authorized to oversee local rate regulation for
"basic tier" service on cable systems. And under Section 76.906 of
the FCC's rules, "cable systems are presumed not to be subject to
effective competition." Cable operators must overcome that pro-regulatory
presumption by demonstrating the existence of effective competition. With two
nationwide DBS providers, not to mention telco entrants into the video market that are rapidly gaining market share,
cable operators have obtained relief from basic tier rate regulation in
numerous local markets.
But the entire rate regulation system has outlived its
reason for being. Rate regulations are an onerous form of government
restrictions that can be justified only in instances of market failure. Much of
existing law concerning cable video services was adopted back in the early 1990s.
At that time, most people could obtain video subscriptions only through their
local cable operators.
By contrast, today's video services market is marked by
choice in video content and competition
between different platforms. As indicated in the FCC’s 15th Video Competition Report, by
mid-2012 there were approximately 101 million multichannel video programming
distributors (MVPD) service subscriptions. Of those, 98.6% – that is, 130.7 million
households – had access to at least three MVPDs, and 35.3% – 46.8 million
households – had access to at least four MVPDs. As of mid-2012, DBS operators
had a market share estimated at 33.6% and "telco" MVPD entrants had
a market share of 8.4%.
Also, Congress could insert into STELA reauthorization
legislation a provision to eliminate basic tier "must-buy"
regulation. Under Section 623, cable operators are required to carry all local
broadcast TV signals on their basic tier channel lineup. Must-buy is a central
component of the government-prescribed basic tier that cable operators must make
available to consumers as a pre-condition to offering additional tiers of cable
channels.
But must-buy has likewise outlived its reason for being. Cable
operators should be free to offer consumers video content according to their own
editorial judgment, not government dictates. To the extent cable operators
would rather carry broadcast TV content on a separate premium tier or not
carry it at all, consumers could still seek such content from DBS providers,
online video distributors such as Hulu or broadcast TV websites, or by using
rabbit-ears that receive over-the-air high-definition TV signals.
Further, must-buy regulation poses serious First Amendment problems.
Supreme Court case law clearly holds that MVPDs engage in and transmit speech,
thereby receiving First Amendment protection from government restriction. The
so-called cable bottlenecks that justified much of the cable regulation adopted
in the early 1990s do not exist in today's video services market. This point
was amply made in the context of the D.C. Circuit's decision in Comcast v. FCC (2013). The D.C. Circuit reversed
the FCC's attempt to determine cable channel lineup placement by government
decree. In his concurring opinion, Judge Kavanaugh explained that because
"the video programming market has changed dramatically, especially with
the rapid growth of satellite and Internet providers," MVPDs do not possess market power in the
nationwide video services market. Concluded Judge Kavanaugh: "In
restricting the editorial discretion of video programming distributors, the FCC
cannot continue to implement a regulatory model premised on a 1990s snapshot of
the cable market." (For more on this see The Free State Foundation's "The
Case for Program Carriage Reform.")
The must-buy requirement implements a regulatory model
premised on a 1990s snapshot of the cable market. Congress should not wait for
a new Supreme Court ruling to address must-buy’s misalignment with today's market
conditions and First Amendment protections. By some legislative proposal or the other, Congress should eliminate must-buy regulation.
In fact, additional legislative proposals have been offered
that would eliminate onerous and outdated regulations of video services. H.R.
3720, introduced by Rep. Steve Scalise, would eliminate both rate and must-buy
basic tier cable regulation. Rep. Scalise's "Next
Generation Television Marketplace Act" is much broader in scope
than basic tier regulation, and its approach is something FSF scholars have
previously expressed
support for.
Likewise, H.R. 3196, introduced by Rep. Bob Latta, would
eliminate the FCC's integration ban that prohibits MVPD-provided video devices
from performing both navigation and security functions. The bill offers an
approach that could be embodied in STELA reauthorization legislation. FSF
scholars have previously commended
the policy approach of Rep. Latta's "Consumer
Choice in Video Devices Act."
Congress should keep an open mind about using STELA
reauthorization legislation as a route to regulatory reform for video services.
Through STELA, Congress could tidy up its policy toward cable services by
eliminating rate and must-buy basic tier regulations. Whether STELA is
ultimately the right instrument for eliminating outdated cable regulations may be a
question of expediency and tactics within the legislative domain. But there’s nothing unclean about the imperative to remove old
regulations that are no longer justifiable in today’s competitive video
services market.