ICLE Panel: If Broadcast Caps Go, So Should Retransmission Consent
Different video media shouldn’t face uneven regulation, so if broadcast-ownership caps are eliminated, the retransmission consent regime must also be done away with to prevent MVPDs from collapsing, panelists said Thursday at an International Center for Law & Economics (ICLE) event on modernizing video competition policy. The panel was moderated by FCC General Counsel Adam Candeub.
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“If you eliminate the ownership caps but you leave the retrans rates in there, you're going to create a death spiral,” said Jason Buckweitz, former executive director of the Columbia Institute for Tele-Information.
Media Institute President Mike O’Rielly said that rather than updating the rules by regulating streaming and newer tech, legacy video regulations should all be scrapped. “No one that I know is trying to figure out how to take this broken system and apply it to the new high-tech universe.”
The FCC should treat broadcasting, streaming and MVPD video the same because consumers don’t see a difference, multiple panelists said. “These products are substitutable, and if you're not getting what you need out of a broadcast you can go to digital,” said Jeffrey Westling, a senior scholar of innovation policy at ICLE. “If the digital streaming services start raising prices, and you have too many, you can go back to a cable bundle. There's different options for the consumer to consider and purchase.”
If broadcasters are allowed to scale, and retransmission consent and must-carry rules are eliminated, broadcasters and MVPDs would have to directly negotiate for content, said Jessica Melugin, director of the Center for Technology & Innovation at the Competitive Enterprise Institute. “Let them bump snouts in the marketplace.” That competition would allow the market to decide how local news is delivered in the future, she said. “If there truly is this demand for local news, there will be an incentive to fill that demand. Let's let the market try to do that.”
Buckweitz said retrans rules were no longer needed after the U.S. Supreme Court’s 2014 decision in ABC v. Aereo. Retransmission consent was created to keep cable companies from taking broadcast content without compensation, but the Aereo decision clarified that taking broadcast content is copyright infringement, he said.
It’s also not clear how sweeping changes to retransmission consent would be enacted, because many of the rules are based on laws created by Congress, the panelists said. “I don’t think the FCC can do a lot of this,” said O’Rielly. He suggested that Congress could extend the agency’s forbearance authority to apply to rules governing video.
It's questionable if any effort to do away with retransmission consent and must-carry rules would make it through the legislative process, Melugin agreed, imitating the sound of a sad trombone. “It's a heavy lift to get this stuff peeled back.”