On March 31, the Federal Communications Commission (FCC) approved the latest in a string of proposed rulemakings, one which could have a significant impact on the business and operations of communications companies and edge players.
FCC chairman Tom Wheeler’s proposal to establish privacy rules for Internet service providers followed closely on the heels of the FCC’s proposal to “unlock” the cable set-top box (see "PwC’s 3things: Unlocking the Set-Top Box"). All of this comes a year after the controversial Open Internet Order (OIO), which reclassified broadband Internet access as a “telecommunication service” under Title II of the Communications Act, allowing the FCC to impose its “Open Internet” regulations.
While neither of the FCC’s two proposed rules are finalized – and the OIO is still being challenged in court – the fact is that the tide of regulatory-driven change is rising. Understanding and managing legislative and regulatory change is now a daily part of any business and has the attention of the highest levels of nearly every organization. Firms that have the ability to effectively manage – or even embrace – the impact of regulation can gain a competitive advantage.
Lessons Learned From the Wave of Dodd-Frank Regulation
Our experience with financial services firms addressing the rise of global financial reform regulation coming out of the financial crisis (e.g. the Dodd-Frank Act in the U.S.) found that the “winners” in the new regulatory environment were those firms that evolved their approach to proactively manage the impact of regulatory change. As Dodd-Frank’s proposed rules emerged, many banks took a combative stance and adopted a “wait and see” approach to preparing for the impact of the final rules. This approach left many unprepared and in a reactive mode when the rules were finalized. There was no time to think through the strategic or operational impact as they struggled to implement the required changes within the regulatory deadlines.
As banks later accepted the inevitable of the post-crisis regulatory environment and gained experience in addressing new and evolving regulations, a new model arose. Banks continued their lobbying efforts to shape proposed rules, but they also began to game plan the scenarios that might unfold.
Applying the Strategic Approach: The FCC’s Set-Top Box Proposal
The Dodd-Frank lessons learned from the financial services industry can be applied across most other industries facing regulatory-driven change. The FCC’s recent Set-Top Box proposal is a prime example. The FCC believes that the proposed rule meets their obligation under the Communications Act of 1996 to ensure a competitive market for navigation devices for live and video programming. Those opposing the proposal argue that it is unnecessary because the market is already innovating and providing customers with sufficient choices to access their content. The official 30-day comment period for the proposed rule will close on April 22, so, while late, there is still an opportunity to apply a proactive strategic approach (see graphic representation below) to address its potential impact.
At the most basic level, there are three potential outcomes for the proposed rule:
- The rule is passed largely as proposed, so multichannel video programming distributors (MVPDs) would have to make the three information flows (Service Discovery, Entitlement and Content) available to third party navigation devices according to the rule’s requirements.
- The rule passes but gets held up in court similar to the OIO, leaving the industry in a limbo state of regulatory uncertainty.
- The rule does not pass, so the status quo remains.
MVPDs, technology and media companies should consider conducting an impact assessment based on each outcome. Many MVPDs are already innovating the ways in which consumers access their content through apps and other IP-based approaches or are working with third-party device companies to share content. They should be evaluating how their progress on this front could help them address some or all of the proposed rule’s requirements. At a minimum, this exercise would inform their response to, and formal comment on, the proposed rule. It may also provide them with insights that would allow them to benefit from any early adopter advantages.
With a proposed compliance date of two years after the final rule is approved, firms would have time to implement the types of strategic changes that this analysis might identify. The two-year window also makes it likely that the second scenario (legal challenge) would have little impact on a business’ strategy, other than providing an extended window for the more reactive firms to further delay potential changes to their strategy or business model. If the third scenario occurs and the rule does not pass, how would that impact the response of impacted firms? Most agree that the market for accessing video content is advancing rapidly with the evolution of Over-the-Top and digital offerings. With or without a final rule, firms will have to evolve and the analysis performed in preparing for the Set-top Box rule will help them formulate their evolution strategy.
In this era where change comes from all angles (including regulation) and disruption occurs at an accelerating pace, those firms that adopt a proactive approach and embrace regulatory-driven change can create a distinct competitive advantage.
David Sapin is Technology, Information, Communications and Entertainment (TICE) Risk & Regulatory Leader at PwC. Follow him on Twitter.
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