- - Sunday, March 13, 2016


Americans don’t expect their government to be perfect, but they have a right to expect basic fairness. When mismanaged banks are deemed “too big to fail” while ordinary Americans lose their homes to foreclosure, people get frustrated. A lot of dissatisfaction with Washington is built on the sense that the deck is stacked in favor of a select few.

A recent example is the unnecessary proposal for new TV rules being considered at the FCC.

For most people, the idea that we need new federal regulations to give us more choice in TV is ridiculous on its face. From Netflix to Roku boxes to Apple TV, we have more ways to find and watch TV than ever — from wall-size projection screens to smartphones.

The quality and diversity of programming has exploded too — diverse voices and stories are stronger than ever on our television screens. From “Modern Family” to “The Wire,” the quality and diversity of video storytelling is simply light years beyond anything we saw during the “big three” network era. The biggest problem for many viewers with TV today is “not enough time to watch.”

Yet FCC Chairman Tom Wheeler has proposed a new rule (called “AllVid” after a proposal President Obama’s first FCC chairman rejected several years ago) that would force existing TV companies to hand over their complete programming libraries for tech companies to use in competing services and devices of their own without negotiating or paying for the rights. You can see why many observers call it a giveaway to Big Tech — just the kind of unfair government thumb on the scale Americans have grown so sick of.

It’s a giveaway tech companies don’t need. Nothing stops any company from negotiating for programming rights and launching its own video service or streaming device today, just as Apple TV, HBO Go, Netflix and dozens more have already done.

Yet now the FCC thinks we need new rules for video to jump-start consumer choice? That simply makes no sense. The disconnect suggests the real reason for these regulations is something far more Washingtonian — like pleasing political allies and propping up favored constituencies — than making markets work.

Another indication that these rules aren’t really about consumer choice is the dubious precedent the FCC’s chairman cites to justify them — the completely inapt 1968 “Carterfone” decision that allowed consumers to connect any phone to the monopoly telephone network. Until Carterfone, the Bell System telephone monopoly would only permit consumers to connect telephones made by the Bell System.

Unlike the Bell System, today’s competitive video service providers don’t stop consumers from using their own devices to watch video. You can watch Comcast or Netflix on a host of third-party devices, including AppleTV, Google’s Chromecast, Roku TV, and Samsung Smart TVs, among others.

Carterfone also didn’t require fundamental changes to the way the telephone system worked. But the chairman’s AllVid proposal would require at least two years of work to create government-approved technical standards that would fundamentally change the way video programming is created and delivered.

The AllVid rules would cover a lot more than just devices that are used to watch video programming — they would rework an entire segment of our economy, reshaping or overturning a complex system of programming deals and licensing arrangements, privacy regulations, copyright issues and consumer protection laws. Carterfone dealt with one thing — attaching devices to the analog telephone network — not a vast universe of live, on-demand, and recorded video content raising different technological, legal, and economic concerns. Carterfone didn’t implicate the rights of content-holders at all.

The chairman’s own proposal recognizes these issues are so vexing and complex they cannot be resolved at the FCC, and must be shunted into a vast new standards setting process to design new systems and technologies.

And while Carterfone proponents argued that innovation was slow moving for “plain old telephone service,” that’s patently untrue in the video world today, which is enjoying a new “Golden Age” with radically innovative devices, services, and programming options flooding the market day after day. It’s hard to see how forcing the video industry into a lengthy, government-mandated standards process will speed up innovation.

These differences are why the FCC itself has found that “telephone networks do not provide a proper analogy to [video devices] due to the numerous differences in technology” between phone and video networks.

But, apparently in the face of pressure from friendly allies in Big Tech, that conclusion is apparently no longer operative for the current FCC chairman.

Americans deserve better than this. Government shouldn’t change the rules depending on who is playing the game or invent justifications to intervene in markets that are working simply to boost its favored corporate interests.

The FCC should reject the unnecessary and harmful AllVid rules.

• Fred Campbell formerly served as chief of the Wireless Telecommunications Bureau at the Federal Communications Commission (FCC) and wireless legal adviser to FCC Chairman Kevin Martin.

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