Wheeler Concern for Blocked Web Content During Carriage Disputes Attracts Small Cable Operators
Operators of small cable systems said the blocking of online content to customers during carriage disputes is a growing concern among policymakers following FCC Chairman Tom Wheeler’s comments on the issue last week during a House Communications Subcommittee hearing (CD May 21 p12). “That is something that is of concern and that we all should worry about,” he said in response to a question from Rep. Peter Welch, D-Vt. The answer helps bring the issue further up front, said some public interest and cable operators in interviews. NAB said it has been cable operators that have restricted broadcast online programming. While Wheeler hasn’t yet had conversations with the other commissioners about blocking online content, he is keeping a close eye on the situation, an FCC official said.
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Smaller cable operators bemoaned the cutting off of Viacom content online for customers of Cable One, Liberty Cablevision of Puerto Rico and other small providers (CD May 7 p14). It’s been a growing problem, said Ross Lieberman, American Cable Association, vice president-government affairs. It’s a great concern to smaller ISPs and their customers, he said. Policymakers are starting to see how edge and content providers “can wield their own market power in ways that can be harmful to consumers,” he said. Wheeler’s comments signal to providers “that if they continue to use these tactics during blackouts that the FCC may, in fact, be willing to take action,” said Harold Feld, Public Knowledge senior vice president. ACA and PK are among those seeking changes to retrans rules.
It’s possible the FCC barring broadcasters with joint sales agreements from engaging in joint retransmission negotiations has encouraged it to “get out of the mind-set that it’s helpless under the good faith standard,” Feld said. It probably encouraged the FCC to look at other situations “that might not be the kind of direct negotiations over the retransmission right that Congress intended,” he said.
Broadcasters are generally fine with online distribution of their programming, “so long as distributors properly compensate our stations for carriage,” an NAB spokesman said in an email. It has been Time Warner Cable and other cable operators that “have sought to restrict broadcast online programming only to the cable TV Everywhere model,” he said. Last year, a retrans impasse between CBS and Time Warner Cable resulted in the yanking of online content for TWC subscribers (CD Aug 6 p2). CBS and Viacom had no comment.
Any FCC action taken to prevent customers of multichannel video programming distributors from losing online access could affect the net neutrality debate, said cable officials. The commission could act under net neutrality rules, “or it seems like they could also rule that blocking of online content as part of a retransmission negotiation is a violation of good faith,” Lieberman said. The FCC seems to have some options available to it if it wishes to address Wheeler’s concerns, he said.
Wheeler’s comments are promising in the larger context of content neutrality, said Robert Gessner, Massillon Cable TV president and an ACA board member. “It’s important from a net neutrality perspective because the old rules really didn’t speak to network neutrality.” If the network is going to be truly neutral and fair to all participants, “then the whole network needs to be neutral, not just the ISPs,” he said. A net neutrality statement that any legal consumer “should have the ability to access any lawful content through any legal device through the ISP of their choice would preclude blocking an ISP” for someone who doesn’t buy TV content from a distributor, he said. It seems even crazier that a Cable One Internet service customer is cut off from certain sites because of a cable carriage dispute, said Bruce Beckner, a cable attorney at Garvey Schubert. For those who support net neutrality, he said “that’s a good example as to why some sort of regulation is needed -- to keep that kind of thing from happening.” (klane@warren-news.com)