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Editorial: Slow on the Uptake

The Federal Trade Commission has already determined that there is going to be an important market for rating online video, and has even taken steps to prevent a combined Nielsen and Arbitron from foreclosing what it anticipates will be a robust market for ratings.

The FTC approved Nielsen’s purchase of Arbitron with the caveats that the combined company makes cross-platform measurement technology available to a third party—likely comScore—and allows that third party to cherry-pick key executives from Arbitron, all in the interest of fostering a robust cross-platform marketplace.

Republican FTC commissioner Joshua Wright, who dissented from the FTC decision because of those conditions, raised the issue of regulating companies based on a market that does not yet exist. He has a point, but that’s for a different editorial.

For the same reason the FTC feels it needs to aim ahead of a target moving as fast as the Internet, the Federal Communications Commission needs to set the rules of the road for Internet-delivered video, which is already a going and growing market and one it has been pushing as an important new competitor to traditional video. Those rules, or perhaps the decision to lift the mandates for others, would help cable operators and new entrants decide how to proceed, providing some of that vaunted “regulatory certainty.”

FCC chairman-in-waiting Tom Wheeler will have a lot on his plate when he comes aboard, but the FCC needs to weigh in on what regulatory structure should apply to online video, which will determine how the competitive market the FTC anticipates is going to develop, along with gaining an inkling of just how robust that marketplace is going to be.

But it is not only the FCC that needs to get its act together. The courts are currently divided over the related issue of how to treat Aereo and FilmOn’s delivery of TV station signals online, and the jury is still out on Hopper’s place-shifting DVR technology when it comes to network primetime programming.

It is asking a lot to get the wheels of justice to turn any faster. But video providers on both sides of the arguments need some judicial certainty to go along with regulatory certainty. We note that it took a California judge more than half a year to rule on Fox’s petition for a temporary injunction against Hopper. That is an eternity in the world of digits and bits. The government needs to recalibrate its decisions accordingly.