Editorial: The Sword

No groundswell of support for a la carte legislation at State of Video hearing

We were pleased to see last week that there was no groundswell of
support at a Senate “state of video” hearing for Sen. John McCain’s
saber-rattling over cable prices and bundled programming and his
answer—à la carte legislation that would force a new programming
model on the industry.

McCain suggested last week that his à la carte/program unbundling regime would be voluntary,
but that is in name only. Cable operators that
“chose” not to carve up their tiers would lose the
compulsory license, while broadcasters who did
not unbundle cable channels and TV stations in
carriage negotiations would lose the syndicated
exclusivity and network non-duplication protections
for their local-market signals. Oh, and they
wouldn’t be able to elect retransmission consent
and seek payment for their stations either. Other
than that, how was the play, Mrs. Lincoln?

As if that were not enough—and it is—the
McCain bill includes a provision that could not
be more Areo-friendly if Barry Diller had drafted
the language himself. It would effectively prevent
broadcasters from moving any programming to
cable—in an effort to be compensated for their
content—if the courts rule that Aereo (and by
extension, anyone with a similar delivery model)
can offer TV station signals over the Internet
without paying broadcasters.

“A television broadcast station that does not
retransmit the signal over the air that is identical
to the signal retransmitted to a multichannel
video programming distributor shall forfeit any
spectrum license of such television broadcast station,”
the bill states.

Did we mention the part about inserting the
FCC into carriage impasses, something the current
Democrat-led FCC has been loathe to do?
Fortunately, the bill has about as much chance
to pass into law as most bills in today’s dysfunctional
Congress. But there were suggestions last
week that some of its elements, or at least the
issues it addresses, could arise in the run-up to
reauthorization of the Satellite Television Extension
and Localism Act (STELA).

Unfortunately, McCain seemed to have a bipartisan
ally on the Aereo front in Democratic
Virginia Senator Mark Warner. At the hearing,
Warner suggested that broadcasters got their
spectrum for free and should have it taken away
for some higher public good if they tried to move
programming to cable.

As National Association of Broadcasters president
Gordon Smith pointed out, broadcasters
pay for their spectrum every day with a host of
public interest obligations—children’s and political
programming obligations, news and emergency
information to name a few. And threats to
further kneecap broadcasters do not advance the
conversation about video’s future.

The marketplace, including pressure from online
video distributors, is already spurring broadcasters
and cable operators to weigh new models
for getting content viewers want out to them,
where and when they want it. They don’t need
John McCain’s—or any other legislator’s—thumb
on that scale.