Cable Television Regulation for the Twenty-First Century

In its highfalutin’ ideals, the Internet is dedicated to the notion of delivering a world of information to all for free, accessible for all to contribute to, available whenever and wherever you want it. Cable television, by contrast,┬ádelivers only the content the cable company sees fit to provide you, the vast majority of it from nine companies and laid out on a rigid linear-television schedule, and forcing you to pay for all of it to get just the few programs you want. It is, in short, the antithesis of net neutrality, and as I laid out earlier, the cord-cutting debate is effectively a clash between the outdated vision for the provision of content and the new vision sweeping it aside.

It is therefore tempting to conclude that traditional, wired linear television has not only outlived its usefulness but needs to be actively destroyed to preserve the ideal of net neutrality, that any future it might have is only in schemes such as Comcast’s “Stream TV” that use the existence of linear television over traditional wires to circumvent net neutrality by providing preferential treatment to certain types of video content. But as I’ve chronicled, at least in the wireless context, linear television can not only play a key role in network management, traditional broadcast linear television can actually benefit net neutrality by allowing those tools to be accessible to as many potential programmers as possible and delivering it to everyone regardless of carrier.

Not all of these benefits can be directly transferred to the wired context. Most obviously, wired connections are inherently dominated by whatever company owns the wires and processes the connection; they are inherently going to have some control over what content can use the linear television wires. And if you believe that at some point, everyone is going to be fed by a direct fiber-optic connection, fiber-optics sees no benefits to linear television at all; each customer has its own fiber leading directly to the node and the rest of the system without being impacted by anyone else’s activity. Unless, that is, it’s set up in something like a passive optical network, which reduces the cost and amount of fiber needed to go into business by splitting one fiber to serve multiple endpoints, effectively delivering each customer’s content to every customer on the same splitter. It requires end-terminals to sort out what content belongs to which customer and encrypting content to prevent eavesdropping, but if I were running such a network I would look into a way to actually foster eavesdropping for live streaming video, so if someone is watching a game on ESPN3, anyone else on the same splitter that wants to watch the same game can ride on the first person’s stream, freeing up network capacity for everyone else.

This hints at what the future of wired linear television might look like on both coaxial cable and fiber-optic networks, blurring the lines between online and linear content so thoroughly it may be impossible for the end user to tell which is which; some WWE Network content might be delivered linearly, while in some areas a network like Logo might be delivered via IP. It doesn’t have to look like Stream TV, but it might have to adopt some of the less savory elements of T-Mobile’s Binge On, finding some way to identify live streams so they can be isolated and delivered once. It may also be beyond the capability of some providers to pull this off dynamically, certainly while minimizing lag; linear delivery may be something that has to be arranged ahead of time in some way. The key, then, is to figure out how to foster such a system while preserving the principle of net neutrality.

Last year I sent a Congressional committee 13 pages of comments explaining what principles I felt should underlie any revisions to the Communications Act to update its treatment of video for the Internet age. More recently my thoughts have coalesced with regards to how to regulate wired television to bring it into alignment and consistency with the principle of net neutrality and existing rules governing the Internet. To that end, here’s what it might look like:

  • No content delivered via linear television, particularly that not delivered over-the-air, can be withheld from delivery over the Internet, whether by the ISP or the content provider. This is a basic way to avoid using linear television as an end-around around net neutrality rules, and it also demonstrates an important difference between linear television now and going forward: it is no longer a prerequisite for the delivery of content. ISPs may no longer find it necessary to carry a linear television service at all. Really, the notion that cable operators are just a backdrop and infrastructure system through which programming is carried, which has little to no role in what programming it is, is one that probably should have taken hold several years ago as digital cable obviated the condition of scarcity that had governed the pay-TV industry, and certainly once Internet streaming became competitive; it’s still impossible for a cable operator to carry every would-be linear network, but the notion that your ability to watch a channel anyone would actually watch would be determined by what pay-TV operator you subscribe to seems not only quaint and outdated, but antithetical to net neutrality. In this vein:
  • If linear television is carried over any wired network, it should be controlled at the infrastructural level. I’ve seen suggestions to increase competition for Internet service by decoupling control of the infrastructure from the service delivered over the pipes, recognizing the natural monopoly the pipes themselves represent while still allowing ISPs to compete freely (i.e., without utility regulation) for the service delivered over them. If so, the same principle underlying broadcast television applies: the content allowed to benefit from linear television should be the same for everyone regardless of carrier. Any distinctions between the content available in different areas should be a natural result of the existence of different networks, without individual ISPs controlling what content you can and can’t watch and how easily you can do so.
  • Keep the existing must-carry rules. Ideally, broadcast television serves as a means to deliver the most popular content quickly and efficiently to a variety of devices. It’s reasonable to think that the same content would also be most popular over a wired connection. This rule would establish some degree of parity between wired and wireless video, ensuring the same content that benefits from linear television for the one gets the same benefit on the network with more capacity, and recognizes the original purpose of cable TV to deliver broadcast stations to areas their signals couldn’t reach. The increase in capacity may mean it’s actually not necessary to add any further linear channels beyond those provided by broadcast stations, but it’s reasonable to think video consumption would be higher, and be at higher quality, over a wired connection. If there is a need for further linear channels:
  • Forbid any monetary transactions as a condition of linear carriage between an ISP (or infrastructure authority) and a content provider, especially per-subscriber or per-viewer fees. Content providers may only charge consumers directly, though they may use any scheme they wish to do so as long as the ISP (or infrastructure authority) is not directly involved. This rule ensures that potential network strain is the only factor going into what channels are carried linearly, and should render retransmission consent unnecessary and contradictory. Net-neutrality foes and general free-market advocates may look at this rule and think it’s cutting off “innovative” business models, but because in this model linear television is a means for smoothing over the transmission of content that is being made available through the Internet anyway, one that should reduce the costs to both parties relative to the alternative as the number of viewers goes up, there should be no relationship between the costs of maintaining a linear feed and the number of subscribers an ISP has that would have access to the feed or the number of people using it; the costs of providing the feed should be the same regardless of how many people are on the network or can view the feed, indeed that’s entirely the point of linear television in the 21st century. The cost of providing and acquiring the content (an issue concerning the consumer) should be a separate issue from the cost of delivering it (an issue concerning the content provider and ISP). There is therefore no good reason to charge ISPs anything other than a flat fee (and even that’s questionable; small ISPs wouldn’t be too hurt by being unable to amortize the cost across more customers because they’d have less need for linear TV to begin with, but any sort of payment scheme might create the same imbalance that made retransmission consent necessary), and for an ISP to charge a content provider would amount to exactly the sort of “paid prioritization” net neutrality advocates fear so much.
  • Impose effective protections against discrimination and an effective dispute resolution process. Again, the only factor that should go into whether any programming is or is not offered linearly is its raw popularity, and any content popular enough to warrant it should have the opportunity to use it regardless of their level of resources or connections. This does not mean disadvantaged groups or public entities should have a blanket right to a linear stream; again, a linear channel is not a prerequisite for the delivery of content, and in some cases what they’re looking for no longer even needs to be video. In many cases these entities seek to take advantage of the modern cable-bundle model to acquire production and distribution resources on par with more well-heeled groups they might not be able to attain if they were forced to stand and fall on their own merits. It may be desirable to introduce new programs to benefit minorities and open up the possibility of using franchise fees on ISPs to fund the production of video and other content by public entities (similar to today’s “public, educational, and governmental channel” system), but linear television is irrelevant to that discussion and shouldn’t be hijacked to attain those goals.
  • The quality of a linear stream must be the same across all platforms and an ISP (or infrastructure authority) must not degrade it. Because an ISP does not have to carry a channel (except for a broadcast station) for its customers to have access to the programming on it, there is no reason for an ISP to reduce the quality of a stream in order to fit in more streams. If a content provider offers its stream at too high a quality and causes all ISPs to balk at carrying it, that’s a market signal to reduce the quality of the linear stream. There is one exception to this rule: because the main purpose of over-the-air broadcasting is to reach mobile devices, it may be beneficial for broadcasters to offer wired services their content at a higher quality than they broadcast it over the air.
  • Consider imposing restrictions on how many streams one entity can control 24/7 (or otherwise beyond particular events) on one set of wires. Ideally, impose some degree of parity in ownership restrictions between broadcast and wired linear networks. In particular, ISPs should be severely restricted in how many linear streams over their own wires they directly control the content of. In general, consider moving to the Canadian system where the FCC has as much latitude to regulate cable networks as they do broadcast networks.

These rules provide a baseline to move wired linear television away from being a marketplace defined by 1990s rules and market realities and towards becoming a tool that enables the benefits of both linear television and the Internet to be available to all, consistent with the ideals of net neutrality. They hold the potential to usher in the dawn of a new era of consumer choice that frees Americans from the paradigm of having one’s entertainment options dictated by the cable company and enables them to choose from a menu of options that provide value to them. It’s my hope that this provides a framework for policymakers to rethink the wired television landscape and for the American public to imagine what it might look like.

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