The issue of retransmission consent, which I talked about in "Adventures in (Seemingly) Obscure Telecom Law" a while back, is going to be the subject of a Senate hearing next week during the lame-duck session. The reason it's getting this kind of attention is a well-publicized spat that led to a 16-day blackout of Fox programming for Cablevision's customers in the New York area. Fox then took to (briefly) blocking Cablevision customers from accessing their programming online, hilariously causing net neutrality advocates to cry foul (even though net neutrality is intended as a restriction on internet SERVICE providers, not CONTENT providers). Though I'm hardly some prescient genius, the concluding paragraph of my post from last month seemed to predict exactly this course of events:
"The way that Congress works, this stuff never gets dealt with until a crisis has arrived, but we can all hope that won't be the case this time around. Otherwise, you may only see the evidence when the Super Bowl gets blacked out because your affiliate and cable company couldn't come to an agreement. Then, you'll inevitably get a bunch of angry consumers yelling 'There oughta be a law!'"
"The lesson of this latest confrontation should not be that we need to “reform” retransmission consent rules to add FCC arbitration as Sen. Kerry and some broadcasters and video distributors are suggesting. Instead, it’s that given a competitive market for programming, as the FCC has acknowledged exists in New York, we should plain and simply get rid of must-carry and retransmission consent rules altogether and allow a real free market to work. Without such a move, I see a lot more blackouts in the future."
Congress drafted rules that protected content providers from what was essentially a cable monopoly back in 1992, a monopoly that no longer exists. The result is that content providers are exploiting that protection to the fullest, leading to episodes of brinksmanship like the Fox-Cablevision fight. The time has come for a free-market rewrite of telecom law generally and retransmission consent specifically, and forgive me if I think our would-be Windsurfer in Chief is the wrong guy to lead it.