On June 27, 2012, the House Subcommittee on Communications and Technology held a hearing on the Future of Video, which took a look at how technology has changed the way Americans view movies, videos, and broadcast TV entertainment. As evidenced by testimony provided during the hearing, there is a wide range of distribution methods now used to offer video content beyond the traditional cable provider. Known as multi-channel video programming distributors (MVPD), cable is joined by satellite operators, new fiber-optic networks and Internet protocol television. In addition, a number of companies also offer online streaming video content to viewers.
At odds with advancements in video technology are existing laws governing the broadcast of television programming. Twenty years ago, as part of the 1992 Cable Act, broadcast stations were given the right to choose between guaranteed carriage or insisting that MVPDs obtain and pay for a station’s consent to retransmit the station’s signal to local subscribers. Broadcasters are also allowed to make a new election between these two options every three years.
In 2010, blackouts occurred during retransmission consent negotiations between broadcasters and MVPDs when disagreements arose, causing viewers to lose access to events such as portions of the Oscars and New York Knicks games. In May 2012, subscribers in North Dakota were unable to access their local CBS and NBC programming when disagreements occurred during negotiations between Dish Network and Hoak Media Corporation. In another retransmission consent dispute in Minnesota, cable subscribers temporarily lost access to local Fox stations.
Current law does not adequately address the problem of programming blackouts experienced by subscribers when negotiations breakdown, and MVPDs are prohibited by law from negotiating with any other broadcaster for the same content due to non-duplication rules. The law also does not account for the various new methods for video distribution, including online streaming video through mobile computing devices such as tablets, laptops and Smartphones.
It is time to repeal antiquated regulatory schemes, including retransmission consent and provide a new regulatory structure that reflects the current competitive marketplace and allows for future innovations in video technology.