American Cable Association chair Colleen Abdoulah plans to
tell the Senate Commerce Committee Tuesday that the 1992 Cable Act is outdated
and due for an overhaul, citing hundreds of smaller cable operators who have
gone out of business due primarily to programming costs.
Among her recommendations for updates are baseball-style
arbitration and no-blackout policies for retrans impasses and, in an apparent
nod to Aereo and others, allowing pay-TV providers to employ "new and
innovative technologies that allow consumers to receive broadcast signals
over-the-air," rather than paying for them via retrans consent.
According to her written testimony for the July 24 Commerce
Committee hearing on the Act 20 years later, she says the law assumes a world
of only cable operators and broadcasters rather than one with phones and
laptops and tablets and smart devices.
Abdoulah says that assumption has resulted in real consumer
harms including failed retrans negotiations and blackouts, skyrocketing fees
for broadcaster-labeled "free-over-the-air TV, collusion among stations to
drive those prices higher, and bundling by increasingly consolidated networks
of unwanted, unwatched and unmarketable programming."
She also says that online video distribution rights are
being "slow-rolled" by content providers giving consumers
"little choice for online video."
She says the "distortions" caused by outdated
rules fall particularly hard on the smaller and rural operators ACA represents.
"Since 2008," she says, "nearly 800 of these small systems have
closed across the country due in large part to escalating retransmission
consent and programming costs that cannot be passed along to consumers, a trend
I fear will continue in many rural communities."
Abdoulah comes armed with some solutions:
"Prohibiting coordinated negotiations by separately
owned broadcasters in the same market;
Ensuring continued carriage of signals during a retransmission consent dispute
in order to stop consumers from being held hostage by blackouts;
Requiring binding baseball-style commercial arbitration of such disputes; and,
Authorizing consumers and pay-TV providers to employ new and innovative
technologies that allow consumers to receive broadcast signals over-the-air as
an alternative to receiving and paying for that content through retransmission