Sunday, September 8, 2019

Modern Regulation -- It's Time!


Nearly 30-years ago, Congress passed the 1992 Cable Television Protection and Competition Act (“1992 Cable Act”).  The amendment to the 1934 Communications Act required Multichannel Video Programming Distributors (MVPDs) to obtain permission from broadcasters before carrying their programming and compensate the broadcaster in cash or other forms of compensation for retransmission of the television signals. (Note: There are no fees for these signals if received over-the-air using an antenna.)
If the MVPD and broadcaster cannot agree on renewal terms, a blackout occurs.   A blackout is a result of an impasse in negotiations between the two parties at the end of a contract term.  Through the first 8-months of 2019, there have been more than 200 blackouts.  The most ever.  The market has changed as consumers watch video content in many different ways, way more than in 1992 when the single option for consumers was watching linear programming on a television set.  Regulation needs to change too.
In late July, Representatives Steve Scalise (R-La.) and Anna Eshoo (D-Calif.) introduced a bipartisan bill called the Modern Television Act of 2019.  It has support from MVPDs.  It has opposition from broadcasters who fear that recent sharp price increases may be curtailed.  Key provisions of the bill include
·       Retain the ability of a local television broadcast station to require carriage on cable and satellite providers in their local market.
·       Extend the 'Good Faith' negotiation requirements.  See:  https://www.law.cornell.edu/cfr/text/47/76.65
·       Require MVPDs carry a broadcast signal while the parties continue negotiations for up to 60 days. Parties would be retroactively paid for their aired content.
·       Repeal retransmission consent and compulsory copyright licenses.
·       Establish a mechanism by which the FCC may require parties to seek “baseball-style” binding arbitration, following an extended impasse or a finding of bad faith.
Let’s see if politicians can get the bill passed by year-end.  Here’s hoping!

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