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Perspectives from FSF Scholars            April 29, 2013        
Vol. 8, No. 11      

  


 

"Low-Ranking" Counterproductive Video Regulations Offer Valuable Lessons

 

by

 

Donna Coleman Gregg *

 

[Below is a short summary of this latest FSF Perspectives. A PDF version of the complete Perspectives is here.]

 

With the Internet and online media, we live in an era of instant polling and constant rankings.Just opening a web browser often reveals another new "Top Ten" list of the "best of" everything from U.S. colleges and professional sports teams to local restaurants. There are even websites that rank the rankings lists. 

 

Having spent some time as a media lawyer and regulator, I have established a list of my own. In the interest of full disclosure, my list, which focuses on video service regulation, is based on personal experience and observation rather than on surveys or scientific public opinion polls.Moreover, the list identifies not the best or most successful video service regulations, but the "lowest-ranking" - those that have become the most counterproductive and problematic. Here I reveal and briefly discuss some of the regulations of my list with hopes that policy makers who have begun to re-examine video service regulation will take note.

 

Common Characteristics of Unsuccessful Regulatory Approaches

 

Any reform effort targeting video services regulation should examine and learn from the following regulatory schemes: (1) must carry and retransmission consent; (2) network non-duplication and syndicated exclusivity; (3) commercial leased access; and (4) the cable television rate regulation (as conceived in the 1992 Cable Television Consumer Protection and Competition Act).

 

Each one has something in common with the others. All were adopted by the FCC or imposed by Congress with good intentions. Over time, however, each one of them not only placed unreasonably heavy restrictions and burdens on the regulated video service providers but also led to unfortunate unintended consequences. The regulations on my list became baffling and annoying to both the regulators and the entities they regulated. More important, however, many of them came to be greatly disliked by the public.

 

Finally, each of those regulatory approaches was designed to address two marketplace factors:(1) technological limitations on the number of outlets for delivery of information and entertainment to the audience; and (2) lack of competition in the video services marketplace.None of the circumstances that formed the original underpinning of these regulatory schemes still exists today. Communicators have an unprecedented variety of options for delivering content to the public, and media consumers have many more choices for receiving those communications. The FCC's most recent annual video competition report confirms the existence of unprecedented competition in the video services marketplace, a conclusion supported by surveys published by the Pew Research Center, Aspen Institute, the Knight Foundation, and other research organizations.

 

Conclusion

 

When considering current and future regulatory approaches for video services regulation, remembering the fate of the four regulatory approaches on my "Low Ranked Regulatory Scheme List" should encourage use of a regulatory lighter touch. Surely any regulatory reform vehicle for video services must take into account the enormous changes in the video marketplace.

 

With the technology moving so rapidly and the marketplace undergoing such dramatic change, regulators should proceed boldly to clear away burdensome, unproductive, and unnecessary regulation. They also should proceed with caution in considering imposition of new regulations. The story of four regulatory approaches on my list suggests potential advantages of employing "test beds" for new services before across-the-board rules become written in stone.With video marketplace regulation, history shows that less is often more. The "Next Generation Television Marketplace Act" introduced in the last Congress proposed elimination of some of the regulatory approaches on my list as well as others. I hope that similar legislation will be introduced and that members of Congress will support it.

 

* Donna Coleman Gregg is an Adjunct Senior Fellow at the Free State Foundation. This paper is adapted from her remarks at the Free State Foundation's Fifth Annual Telecom Policy Conference held in Washington, DC, on March 21, 2013. Ms. Gregg is a Clinical Associate Professor and Director of the Institute for Communications Law Studies at the Columbus School of Law of The Catholic University of America. She has served as Chief of the FCC's Media Bureau and as Vice President of Legal and Regulatory Affairs and General Counsel of the Corporation for Public Broadcasting.

 

A PDF of the complete Perspectives may be accessed here.

 

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The Free State Foundation's new book, Communications Law and Policy in the Digital Age: The Next Five Years is now available. You may order the book from the publisher, Carolina Academic Press, or from Amazon or Barnes and Noble.

  

   

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