Telecom legislation is usually triggered by a general industry concern “that...
Telecom legislation is usually triggered by a general industry concern “that there needs to be a change in the industry,” said broadcast lawyer Toni Bush of Skadden Arps. The communications industry comes together and works with Congress, public interest groups…
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and others to enact legislation, she said Thursday night at an FCBA continuing legal education event on the 1992 Cable Act. “The 1996 Telecom Act is exactly that kind of legislation.” Significant consumer outcry also can be a driver, which is what led to the 1992 Cable Act, she said. Must-carry and retransmission consent provisions are working the way they're supposed to, and there’s an increase in the number of independent programmers, she said. There are some lessons that the government should keep in mind when it looks at dynamic industries with a regulatory eye, said Paul Glist, a cable lawyer at Davis Wright. The market “is going to outpace regulation every time,” he said. “Congress thought prices were going up because there was no competition.” Today prices are increasing because of competition, he said. “No one can risk subscriber defection so we keep, as distributors, paying escalating prices for the content.” Glist also said rules create unintended consequences: “We still operate under outdated assumptions,” such as cable companies having to prove community-by-community that they face effective competition. Legacy rules don’t work for modern, complicated industries, Glist said. There’s a lot of controversy on retrans consent, said cable lawyer Seth Davidson of Edwards Wildman. One big concern about the Satellite Television Extension and Localism Act is whether renewing it before it expires at the end of 2014 will be a vehicle for other issues, like retrans consent and compulsory licensing, he said. “We may end up with a short-term extension.” Bush said she doubts the Cablevision v. Viacom case will compel Congress to hold hearings on it. Cablevision’s lawsuit seeks a voiding of a carriage agreement it signed with Viacom over illegal “tying” allegations (CD Feb 27 p11). Congress is preoccupied and “nobody likes to get in the middle of a private lawsuit,” Bush said. The companies already cut a deal, so customers won’t lose service, she said.