The “program access” rules have been around since 1992, and are responsible for what competition we have in the video space. Without them, cable would be even more monopolistic, if you can believe that. They’re still important, and it’s disheartening to hear that the FCC might phase them out.
These rules say that incumbent cable companies can’t withhold the programming they have control over from competitors–if Comcast creates a sports channel, for instance, it has to sell it to DISH and DirecTV. The program access rules thus allow satellite companies, phone companies, and cable “overbuilders” to offer a full line-up of programming and compete in the video space.
Why are these rules important? Well, for the most part wholly independent programmers want to sell their programming to any subscription TV provider that can afford it. But when a programmer is controlled by a cable company, the interests of the cable part of the business might be put ahead of the programming part of the business, and the company might decline to make its programming widely available. Worried about a lack of competition in the video market, Congress (in the 1992 Cable Act) decided to limit the ability of incumbent cable systems to leverage programming exclusives to cement their dominance.
Instead of just preventing cable companies from controlling programming (a “structural” solution) it came up with a system that allowed cable companies to create their own programming but, for the most part, required them to sell it to any other providers that are willing to pay a fair price (a “behavioral” solution). Behavioral solutions are generally less effective than structural ones but in this case the system, with a lot of glitches and false starts, did work.
The program access rules continue to be necessary–not only to promote competition in the video space, but to protect what competition we already have. As Harold Feld has written, there are some legal issues to be worked out, but those are topics for another blog post.
The point of this blog post is to direct your attention to a related issue: that video competition is important for broadband competition. AT&T and Verizon–hardly cuddly new entrants in other areas–have found that they need to offer TV service for their wireline broadband products to be appealing. Telcos around the country, in fact, are or are planning to start offering services that directly compete with cable TV–just as cable “TV” companies offer phone service.
In Kansas City, even Google has found that it needs to offer a TV service along with its much-touted fiber broadband. As you might predict, the local incumbent (Time Warner Cable) is trying to keep Google from having access to some important sports programming.
And while I have no idea what Google’s corporate policy is with regards to the program access rules specifically, it’s hardly alone in facing obstacles to obtaining the programming it needs to access to assemble a compelling TV/broadband bundle. Just the other day, Public Knowledge and the Sports Fan Coalition–along with AT&T, DISH, Verizon, DirecTV, and CenturyLink–met with the FCC to explain how the program access rules remain important. (Trade associations for rural telcos and rural cable companies are also in favor of keeping the rules in place.) Wide swathes of the industry as well as consumer groups–almost everyone except the cable companies that want to use exclusive programming as a competitive weapon, in fact–still think the program access rules are needed.
The simple fact is: If you want to compete in broadband you need to offer TV, as well. I wish this weren’t so. I wish you could just get a super-fast super-fat broadband pipe and get all your content online. But for most people, right now, you can’t–traditional, old-fashioned TV is still important to millions of people.
If we want there to be wireline-based broadband competition, then, we need to keep in place the policies that allow providers to offer a compelling service. And that means keeping the program access rules in place–instead of “sunsetting” them, or significantly weakening them, as the FCC is reportedly planning to do. Again, the rules are needed to preserve the video competition we already have–the fact that they’ve worked to bring about some level of video competition is not evidence that they are not still needed. If anything, they’re needed more than ever to ensure that new broadband competitors are able to offer compelling services.