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Editorial: The Sword

We were pleased to see last week that there was no groundswell of support at a Senate “state of video” hearing for Sen. John McCain’s saber-rattling over cable prices and bundled programming and his answer—à la carte legislation that would force a new programming model on the industry.

McCain suggested last week that his à la carte/program unbundling regime would be voluntary, but that is in name only. Cable operators that “chose” not to carve up their tiers would lose the compulsory license, while broadcasters who did not unbundle cable channels and TV stations in carriage negotiations would lose the syndicated exclusivity and network non-duplication protections for their local-market signals. Oh, and they wouldn’t be able to elect retransmission consent and seek payment for their stations either. Other than that, how was the play, Mrs. Lincoln?

As if that were not enough—and it is—the McCain bill includes a provision that could not be more Areo-friendly if Barry Diller had drafted the language himself. It would effectively prevent broadcasters from moving any programming to cable—in an effort to be compensated for their content—if the courts rule that Aereo (and by extension, anyone with a similar delivery model) can offer TV station signals over the Internet without paying broadcasters.

“A television broadcast station that does not retransmit the signal over the air that is identical to the signal retransmitted to a multichannel video programming distributor shall forfeit any spectrum license of such television broadcast station,” the bill states.

Did we mention the part about inserting the FCC into carriage impasses, something the current Democrat-led FCC has been loathe to do? Fortunately, the bill has about as much chance to pass into law as most bills in today’s dysfunctional Congress. But there were suggestions last week that some of its elements, or at least the issues it addresses, could arise in the run-up to reauthorization of the Satellite Television Extension and Localism Act (STELA).

Unfortunately, McCain seemed to have a bipartisan ally on the Aereo front in Democratic Virginia Senator Mark Warner. At the hearing, Warner suggested that broadcasters got their spectrum for free and should have it taken away for some higher public good if they tried to move programming to cable.

As National Association of Broadcasters president Gordon Smith pointed out, broadcasters pay for their spectrum every day with a host of public interest obligations—children’s and political programming obligations, news and emergency information to name a few. And threats to further kneecap broadcasters do not advance the conversation about video’s future.

The marketplace, including pressure from online video distributors, is already spurring broadcasters and cable operators to weigh new models for getting content viewers want out to them, where and when they want it. They don’t need John McCain’s—or any other legislator’s—thumb on that scale.