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What Unsuccessful Rules Have in Common

Any reform effort targeting video-services regulation should examine and learn from the following regulatory schemes: (1) must-carry and retransmission consent; (2) network non-duplication and syndicated exclusivity; (3) commercial leased access; and (4) cable-television rate regulation (as conceived in the 1992 Cable Television Consumer Protection and Competition Act).

Each one has something in common with the others. All were adopted by the Federal Communications Commission or imposed by Congress with good intentions. Over time, though, each one of them not only placed unreasonably heavy restrictions and burdens on the regulated video-service providers, but also led to unfortunate unintended consequences.

The regulations on my list became baffling and annoying to both the regulators and the entities they regulated. More important, however, many of them came to be greatly disliked by the public.

Finally, each of those regulatory approaches was designed to address two marketplace factors: (1) the technological limitations on the number of outlets for delivery of information and entertainment to the audience; and (2) the lack of competition in the video-services marketplace. None of the circumstances that formed the original underpinning of these regulatory schemes still exists today.

Communicators have an unprecedented variety of options for delivering content to the public, and media consumers have many more choices for receiving those communications. The FCC’s most recent annual video competition report confirms the existence of unprecedented competition in the video services marketplace, a conclusion supported by surveys published by the Pew Research Center, Aspen Institute, the Knight Foundation and other research organizations.

When considering current and future approaches for video services regulation, remembering the fate of the four regulatory approaches on my “Low Ranked Regulatory Scheme List” should encourage use of a regulatory lighter touch. Surely any regulatory reform vehicle for video services must take into account the enormous changes in the video marketplace.

With video marketplace regulation, history shows that less is often more. The “Next-Generation Television Marketplace Act,” introduced in the last Congress, proposed elimination of some of the regulatory approaches on my list as well as others. I hope that similar legislation will be introduced and that members of Congress will support it.

Donna Coleman Gregg, an adjunct senior fellow at the Free State Foundation, is former chief of the FCC’s Media Bureau and general counsel for the Corporation for Public Broadcasting. The preceding was excerpted from a March 21 speech.