Will TV’s new rules serve big players or public?

June 7th, 2006

The way we watch television for many years to come may be determined by lobbying and rulemaking currently underway in Washington. FCC chairman Kevin Martin, according to several reports, is ready to propose new regulations that would give local stations additional channel slots on cable systems. In Congress, meanwhile, new telecom legislation is in the works, including proposals for national video franchises.

Why should cable companies be required to carry local stations’ multicast channels? The FCC, broadcasters and some members of Congress have various legal theories or rationalizations. Near as I can tell, they come down to this:

1. The public interest is served by:

• the availability of free television, which provides news and information to the public;

• the availability of local television, which informs viewers about their local communities;

• the availability of a diverse television programming, which gives voice to many points of view and enriches public debate.

2. Multicast must-carry fosters the continued existence of free, local TV while enhancing programming diversity.

While I pretty well agree with point No. 1 (in theory, anyway), I do not see multicast must-carry as the best or only way to accomplish it.

Let’s stop and think about this. A multicast carriage requirement would just fast-track a new, hastily constructed wing onto the sprawling muddle of existing broadcast regulations. If we’re to have sensible regulation that truly serves the public, regulators must start to recognize over-the-air TV in its current context—shrunken, if not marginalized—and stop seeing it as the dominant television platform that it was in the 1950s. Let me be clear, though: What’s shrunken is the reception of TV over the airwaves, which is down to perhaps 15 percent. Broadcasters are not marginalized, however; they remain very powerful, largely because they were granted privileged access to most viewers through cable TV and now enjoy wide carriage via satellite TV services, too.

From its earliest regulation, broadcast television was treated as a scarce resource because of its use of public spectrum, which is finite. But television, especially in the broader sense of any video content accessible from our homes, is no longer a scarce resource, and it no longer even requires use of the broadcast spectrum.

Broadcast television may seem to be modernizing—after 13 years and billions of dollars, TV broadcasts will go all-digital in 2009. But let’s be honest: we aren’t ushering in “Tomorrow’s TV Today!”—as the FCC breathlessly calls it on its promotional website for DTV. In techie terms, we’re cutting over from an old legacy system to a newer legacy system. But we’re still on big iron. Broadcast TV is the equivalent of a mainframe, controlled by various sys admins in Washington. And despite the interactive capabilities built into digital broadcast TV, most Americans watching TV over the air will use their TV sets as dumb terminals. What’s more, the cutover to digital TV is unlikely to lead to a resurgence in over-the-air viewership, and may in fact contribute to further declines.

Is it not odd, if not bizarre, that simply because some small slice of a community watches a particular television station over the air, the federal government gives the owner of that station the right to claim space on a cable system? Video over the internet, though dwarfed by TV, is growing at a very fast rate. When 15% of people watch net video, some of which is locally produced, will we then say that YouTube should have guaranteed space on every cable system?

The changes in the video section of the marketplace of ideas need to be recognized, and the nation’s regulatory environment must be sorted out and made to serve today’s public. If we truly value free, local, diverse TV programming, we should insist that our representatives in Washington find a way to make free, fast broadband available to all Americans, while enshrining net neutrality principles that preserve an open internet. Technical challenges remain before internet video can challenge broadcast TV, and broadcast TV won’t, and shouldn’t, go away. But rather than doling out special favors, we need to look to broadcasters to justify their own relevance. Most have more than sufficient resources to ensure their continued viability.

As new legislation begins to take account of changing technology, will the public interest take center stage? Not with this Congress, it seems. Moves toward telecom “reform” are being driven by the demands of industry lobbyists, especially representatives of large phone companies seeking national video franchises that would compete with cable TV. Here, from Drew Clark, is a troubling tidbit:

If Bell advocates of the [House] telecom measure are not able to generate support against a neutrality amendment, the measure could slip to next week, said industry sources.

Telecom lobbyists want to crush net neutrality before allowing legislation that regulates telecommunications companies to go forward. This is an outrage.

Most Americans watch TV for several hours each day. Do you suppose many are even aware of what’s taking place? I wonder at our chances of getting new regulations that will benefit the public in other than incidental ways.

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