Like Politics, Television Should Remain Local

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By David Donovan

David Donovan is the President of the New York State Broadcasters Association. Prior to assuming that office, Donovan served as President of the technical trade association MSTV, as Vice President of Legal and Legislative Affairs for the Association of Local Television Stations, and in a number of positions at the Federal Communications Commission, including service as the media advisor to former FCC Commissioner James H. Quello.

Former Speaker Tip O’ Neil said it best, “All politics is local.” We are a nation of local cities and towns. We work, play, go to school and elect our representatives from local communities. Every day we need our fix of local news, weather, sports and entertainment.

The framers of the Communications Act understood this fundamental fact and licensed broadcast stations to specificlocal communities. Congress and the FCC have created a system that emphasizes local service including the need to have outlets for local political candidates and self-expression.

Given this time-honored federal policy, it is disturbing to see that FCC Chairman Tom Wheeler is proposing to eliminate rules which serve as a lynchpin of America's irreplaceable system of local television. Operating smoothly for decades, the FCC's local “exclusivity rules” allow television stations to enforce their bargained-for exclusive rights to the programming they air in their local markets by preventing cable systems from importing broadcast television stations from distant markets. These “exclusivity rules” provide a self-enforcing mechanism to preserve localism by ensuring that cable and satellite subscribers have access to the local stations serving their communities.

Such a change would mean that if you live in Albany, New York, as I do, you may no longer be able to see your local ABC, NBC, CBS or Fox station on the local cable system. Instead, the Albany cable operator would be free to import these networks from distant, unrelated markets such as Buffalo, Miami, and Glendive, Montana. Residents of Albany would see a drop-off in local news—stories featuring the mayor of Albany, the chief of police, our Congressmen or Senators. And community officials, who want to connect with Albany residents, especially during emergencies, would have less opportunity to do so. In the rough Albany winters, Albany's viewers want to see that local officials have plowed their roads; they do not care whether the roads are plowed in Montana, and probably get upset hearing about nice weather in Miami. Unfortunately, that is precisely what Chairman Wheeler's proposal would allow.

Ultimately, the policy undermines the economic foundation of a local station, making it difficult to finance local news operations.

Turning to the Courts

Instead of enforcing a rule that has worked for decades, the Chairman wants stations go to state and federal courts. As the former chief lobbyist for the cable industry, the Chairman should know this approach will not work. Multi-party, multi-state, months-long litigation should not replace the quiet, yet powerful, deterrent effect of the FCC's exclusivity rules. The Commission is the “expert agency” specifically tasked with managing a localized news and information system, yet Chairman Wheeler is handing this important responsibility over to judicial personnel who are not “experts” in this area, and who are not mandated by Congress to ensure this system functions for Americans everywhere. Chairman Wheeler is discarding the most effective tool to manage this system in a way that is prompt, predictable, inexpensive, and minimizes disruption to consumers.

It is instructive to note that the network exclusivity rule was eliminated once, but then reinstated, precisely because litigating was not an effective way to address these concerns. Nothing has changed.

Regulatory Consistency Lacking

The proposal conflicts not only with the Congressional mandate to promote a local communications structure but with recent activity at the FCC.

This past August, Chairman Wheeler helped restore Sinclair Broadcast Group's local stations to Dish's pay TV service after Dish stopped airing them on its service. At the time he stated, “We will not stand idly by while millions of consumers … are being denied access to local programming.” This suggests that Chairman Wheeler thinks it is important to havelocal broadcast content available to pay TV subscribers. This is consistent with FCC rules requiring stations to provide issue responsive programming to their communities and a signal over their community of license.

But it is inconsistent with the Chairman's desire to enable cable systems to replace local television channels with news, traffic, weather and other emergency information from distant markets, an action that suggests that it is not very important at all to have local broadcast content available to pay TV subscribers.

Chairman Wheeler can't have it both ways. If he supports localism—as the Communications Act says he must—then he must recognize that the exclusivity rules are necessary to ensure that viewers continue to have access to their localtelevision stations. Allowing cable systems to replace local broadcast stations with stations from across the state or across the country will cause consumer confusion and frustration, reduce local news voices, reduce local advertising competition, and ultimately undermine our national treasure of local broadcasting.

Senator Charles Schumer (D NY) recently sent a letter to the FCC asking that it, “[R]efrain from moving forward with a proposal that does not have adequate input form relevant stakeholders.” Senator Schumer clearly understands the importance of localism to our democracy. We hope that Chairman Wheeler listens to his sage advice.

Request Tech & Telecom on Bloomberg Law