"In announcing his latest plan to dictate the way video programming is delivered to, and accessed by, American consumers, FCC Chairman Tom Wheeler began this way: 'There's never been a better time to watch television in America. We have more options than ever, and with so much competition for eyeballs, studios and artists keep raising the bar for quality content.'

 

This is true, of course. We have seen the increased competition - 'so much competition' - with our own eyeballs. Isn't it strange then that Mr. Wheeler wants to introduce an intrusive new regulatory regime under which the government will design new "free" standard video apps for accessing multichannel pay video programming? Not only will the government have ultimate control over the design and functions of the apps, it will mandate the terms and conditions under which copyrighted programming must be made available to all under a compulsory license.

 

This all may seem strange, but it is no longer surprising. As I pointed out just a few days ago in this "Competition and Regulation" piece, no matter how competitive a market, Mr. Wheeler nevertheless seeks to aggrandize the FCC's power. In the face of increasing options and competition in all aspects of the video programming market, the FCC should be reducing regulation, not increasing it. Respect for the First Amendment demands no less.

 

I seriously doubt that the FCC possesses the legal authority to implement Mr. Wheeler's proposal. In Section 629 of the Communications Act, which Mr. Wheeler cites, Congress contemplated FCC regulation of "converter boxes" and "equipment," not Internet software apps. And it certainly didn't contemplate the development of a Commission-imposed compulsory license under which owners of copyrighted programming must make available their programming to all on a non-discriminatory basis.

 

Indeed, Section 629 actually contemplates, in a provision unique in the Communications Act, that the Commission's regulatory authority over navigation devices shall cease when the video programming market is competitive. Mr. Wheeler's proposal runs exactly in the opposite direction - just when the FCC should be letting the competitive video programming and distribution market, including the market for devices and apps, continue to flourish and innovate without new government mandates. Mr. Wheeler wants the FCC to intrude by imposing a one-size-fits-all "standard" license that puts at risk copyrighted programming.

 

Go figure!