Regulatory Parity Named a Top Pay-TV Hope for Next FCC
The pay-TV industry hopes to see the coming FCC make regulatory parity a priority, since cable is heavily regulated and its over-the-top competition is unregulated, said Cristina Pauze, ex-Time Warner Cable vice president-regulatory, at a Practising Law Institute conference Friday. Some parity might also require congressional action, but the deregulatory agenda of the incoming Republican-controlled Congress and White House "provides a lot of opportunity," she said.
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President-elect Donald Trump has tweeted about opposition to net neutrality, but "I don't think he really has a view," said Andy Schwartzman, senior counselor at the Georgetown Law Institute for Public Representation. And issues like broadcast station repacking could get political blowback, he said. Media consolidation also could become more politically charged, given Trump supporters' antipathy to the news media, Schwartzman said, adding there could be some calls for the Trump administration to try to pull some broadcasters' licenses because of the perception they report deliberately inaccurate news. One FCC priority in the new administration should be for it to assert itself as an independent regulatory agency, he said.
Options for the next administration to revoke FCC actions taken under current Chairman Tom Wheeler include a legislative veto, which isn't subject to a Senate filibuster, Schwartzman said. Some agency actions taken in the past two to three months, like the UHF discount and privacy rules, also could come under reconsideration, he said. Undoing net neutrality would require a full Administrative Procedure Act rulemaking and the FCC explaining to a court why it's changing its mind. "That is a difficult course," he said. But the Office of Management and Budget review required by the Paperwork Reduction Act also could be a route, he said, citing the leased access rules that have been in abeyance since 2008.
Net neutrality rules -- opposed by the GOP and much of the ISP industry -- would seem to be a prime target for rollback under the Trump administration, Pauze said. She said the rules didn't cause significant policy retooling by ISPs, but their fears were about potential future regulations under Title II.
Schwartzman said he didn't foresee a significant Communications Act rewrite anytime soon. Given the highly partisan environment in Congress, he said, such a bill likely would get so loaded with provisions that it couldn't pass. "A clean bill will happen, a dirty bill is more likely to show up," he said. Pauze said with GOP control of Congress, there's a better opportunity for a Communications Act rewrite than there has been in years.
NAB Deputy General Counsel Erin Dozier said broadcasters hope the next FCC will make broadcast a focus the way the agency has done for wireless or broadband. AM revitalization work was valuable, but "there is much more that can be done." she said.
The FCC hasn't adopted such media proposals as set-top box rules changes, reclassifying some over-the-top providers as multichannel video programming distributors (MVPD), revisions to promote independent and diverse programming, or changes to the network nonduplication or syndicated exclusivity rules, but those proceedings all remain open for whatever the next FCC wants to do with them, Media Bureau Chief Bill Lake said.
Pauze said more clarity on OTT-as-MVPD would be good, but any will to drive the proceeding is largely gone, with OTT operators that had been pushing it now out of business and numerous other OTT operators not wanting the MVPD regulatory obligations. Pauze and Dozier said the next FCC undoubtedly will see renewed lobbying on retransmission consent rules.
"The great success" of the incentive auction "is that the machine actually works," being the first two-sided auction the agency has undertaken, Lake said. He said given the anticipation that hundreds of stations will have to change channels, the FCC will issue a Final NPRM dealing with deadlines and procedures for the transition. On the likelihood of the FCC revising its rules to require OTT carriage of broadcast signals, he said he doubts the agency would move in that direction but the marketplace is doing so itself. He also said the next FCC likely wouldn't push for rules allowing a la carte video subscription, since that's also increasingly a marketplace trend.