Communications Act Should Be Built ‘From the Ground Up,’ Says Verizon’s Davidson
The effort to rewrite the Communications Act should “build from the ground up,” said Verizon Senior Vice President-Federal Government Relations Peter Davidson on a panel at the Practising Law Institute Broadband and Cable Industry Law conference Monday. The conference also touched on the competitive effect of over-the-top video on multichannel video programming distributors and the Aereo case. Several panelists repeatedly compared applying dated communications regulations to the current video market to fitting a round peg into a square hole. “Why are we doing all these gymnastics?” asked Davidson. “Why not start over?"
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NCTA Executive Vice President James Assey said lawmakers should “regulate down” when creating a new communications act, to allow the new regulations to be flexible to keep up with the pace of technology. Legislators should be “guarded” in listening to calls to “graft old regulatory models” on to the current market, said Assey.
FCC Media Bureau Deputy Chief Michelle Carey advocated for a less “binary” view of how the revamped act could turn out -- focusing on specific changes that could happen rather than whether a new act would have tighter or more open regulations. She compared possible changes to the act to the FCC’s regulation of 911 functionality for VoIP -- an example of a “more targeted granular” change, she said.
Arguments about the role of the Communications Act fall along lines based on incumbency, said Steptoe and Johnson tech attorney Markham Erickson. Incumbent companies make points based on “market power” and decry “monopoly-era rules,” while non-incumbents call such companies “gatekeepers,” he said.
Several panelists said a win for Aereo in the Supreme Court would likely lead to calls for congressional intervention. Broadcasters “would come to Capitol Hill quickly” for legislation to address the copyright and retransmission consent issues raised by the streaming service, said Davidson.
Writing such legislation would be difficult, said Erickson. Writing a law that is able to apply regulations to Aereo without also applying them to cloud-based services like Cablevision’s DVR service or other online video distributors (OVDs) would be “very difficult,” he said. Those sorts of laws could lead to the same sort of opposition faced by the Stop Online Piracy Act and PROTECT IP Act, he said. Instead of a legislative solution, the video market could adjust to “absorb” Aereo as it has other challengers, Erickson said.
Regardless of Aereo’s fate, “network DVR technology” similar to Aereo is “not likely to go away,” said Wilkie Farr media attorney Michael Hurwitz at another PLI panel. Aereo’s future could be linked to the rising retrans market, said Wiltshire Grannis video programming attorney Michael Nilsson. “Aereo is a reaction to retrans.” When retrans prices were lower, Aereo “wouldn’t have been of interest to anyone,” he said.
In the future, sports programming and live “must-see” events are likely to be of increasing importance to OVDs and in the video market, said Nilsson. Services that have access to such programming will use it to differentiate themselves from those that don’t, and will be a bigger competitive threat, he said. OVDs are likely to become more and more like cable networks, said Music Choice Vice President-Legal Affairs Karen Reabuck. To survive, OVDs will need more content, and that will push them into a cable-like format, she said. Prices to subscribe to OVDs are also likely to rise, said Hurwitz. Rising content prices will have to be passed down to consumers, and the higher prices will make it more difficult for OVDs to be “everything to everybody,” he said. -- Monty Tayloe (mtayloe@warren-news.com)