On September 2, House Resolution 1329 was introduced, which declares its purpose in "[r]ecognizing the need for greater access to rural and agricultural media programming." One can see the benefit to viewers of being informed about agricultural weather, agribusiness, commodity markets, and Western sports like rodeos. At the same time, it's important that government respects the First Amendment free speech rights of video programming distributors to select content and determine where or how it is presented to their subscribers. A resolution is perhaps a fitting way to commend Western living, but Congress should steer clear of mandating or appearing to direct the programming content choices of video service distributors.
The House resolution – in agreement with identically-worded Senate Resolution 712, introduced back on July 14 of this year – also decries media consolidation's harmful impact on access to such programming. But that point deserves significant qualification. American consumers have access to more video programming choices and distribution outlets than they did thirty years ago. In the early 1990s, nearly all Americans had only one choice for subscription-based multi-programming video distributor (MVPD) services, a local analog cable provider. Yet in 2022, Americans are served by a local cable provider with expanded programming tier offerings and by two nationwide direct broadcast satellite (DBS) providers. Many Americans also have access to competing former telco MVPD services. Additionally, online digital streaming services are available nationwide, with online video distributor (OVD) subscriptions now outnumbering MVPD subscriptions. And broadcast TV programming, which is now offered via multi-streaming channels and with HD quality, overwhelmingly constitutes a widely available non-subscription viewing option.
The House resolution recognizes the emergence of competing OVDs. It states that "multichannel video programming distributors and providers of digital and streaming media should make delivery of rural agricultural programming, including agricultural news and western lifestyle content, a priority." Although the sentiment behind the resolution may be commendable, it ought to be remembered that video networks are private property. Any government intervention in the marketplace favoring the carriage or specific placement of one particular channel or program on a cable or other video network risks improperly overriding the editorial rights of cable providers or other video distribution network owners.
Cable and other video providers' editorial decisions about whether to carry content and how to present it are constitutionally protected free speech. In Turner Broadcasting System, Inc. v. FCC (1994), for instance, the Supreme Court held that cable video programming distributors engage in and transmit speech and therefore receive First Amendment protections. Moreover, in a concurring opinion in the D.C. Circuit's 2013 Comcast v. FCC decision, then-Judge Brett Kavanaugh wrote that "[j]ust as a newspaper exercises editorial discretion over which articles to run, a video programming distributor exercises editorial discretion over which video programming networks to carry and at what level of carriage."
Moreover, if Congress or the FCC were to adopt a regulation favoring a specific type of video content for carriage on MVPD networks then the regulation would not be content neutral. Any government mandate for prioritizing carriage or ensuring cable basic tier placement for rural and agricultural content – or any other specific type of content – would by definition be content-based and therefore subject to strict scrutiny. It's highly unlikely that a court would find that a program carriage or placement mandate favoring specific video content furthers a compelling government interest and is the least restrictive means to further that interest.
Video policy ought to be guided by the principle of limited government. That principle should caution us against the risk of public officials unduly influencing the programming content choices of private video networks. Another concern is that government could end up preferring highly objectionable content. Rural and agricultural programming may be all-American and family friendly, but there are myriad programming choices that are neither.
As both chambers of Congress consider resolutions that recognize the value of rural and agricultural video programming, its Members should steer clear of allowing such recognition to turn into any form of requirement for private sector video providers.
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