by Hettich
Technical innovation has bestowed us with an abundance of
channels for audiovisual media providers. More and more
platforms for distributing content have become available.
Cable and satellite systems have significantly increased their
capacity in recent years. The quality of IPTV (Television
over Internet) and the availability of audiovisual content on the
internet are steadily improving. As a consequence, the
traditional reasons for intervention in broadcast, cable system and
satellite system markets – e.g. scarcity, diversity, and localism –
have to be reconsidered. It is doubtful whether these reasons
still justify governments' large scale intervention in media
markets. Further, media convergence has blurred traditional
distinctions between media providers. Print media offer
on-demand videos and other audiovisual content on their websites;
broadcasters publish newspaper-like content on their websites.
Despite these developments, regulatory instruments in broadcast
regulation have hardly changed. Regulators still apply
license regimes, ownership limits, behavioral restraints, must
carry, channel position privileges, as well as subsidized public
service broadcasting in order to enhance diversity of opinions and
to promote localism. These instruments are highly disputed
among scholars, and have always been on the edge of infringements
of First Amendment rights of broadcasters as well as platform
providers. As this article shows, the old interventionist
tools may not be expected to work in convergent media markets, even
if they were consistent with First Amendment requirements. In
contrast, we may expect convergence to aggravate the distorting
effects that broadcast regulation has on content providers
(speakers) in audiovisual media markets. Some instruments,
such as privileged carriage of local and public service
broadcasters, amount to outright discrimination between different
categories of speakers.
The jurisdiction of the Federal Communications Commission (FCC)
is limited to broadcast, cable and satellite. It lacks the
power to regulate the audiovisual media industry as a whole.
Its regulatory framework largely aims to protect traditional
broadcasters (linear programmers, TV as we know it). With
alternative platforms for content like the internet becoming more
attractive and powerful, the significance and effect of the FCC's
regulations are bound to diminish. Although a weakened FCC
regulation will still distort the media markets, it may not prevent
the emergence of a new market structure in audiovisual media.
On December 11, 2007, the European Union adopted an overhauled
regulatory framework on audiovisual media, which entered into force
on December 19, 2007. The new framework sharply contrasts the
FCC's approach. Not only does the European Union regulate all
audiovisual media providers, regardless of whether they use
airwaves or the internet to convey their content, but it also
regulates on-demand offers of audiovisual content. The regulation
of on-demand offers opens the door for member states to regulate
services like YouTube or Tudou (YouTube's larger Shanghai
clone). It is the European Union's intention to cover only
mass media which impacts on a significant proportion of the
public. However, who could deny the huge impact on the public
made by presidential candidate Barack Obama's speech on race, which
was published on YouTube? With the internet becoming a
stronger platform for TV-like services, local regulators in Europe
might even be tempted to impose must-carry obligations for local
channels on worldwide operating TV gateways on the internet.
Today's broadcast regulation has become a grotesque impediment
to new forms of audiovisual media and to new ways of producing and
conveying content. It needs to be reconsidered and adapted to
developments in the market. The FCC, as well as the Supreme
Court, are still locked into the scarcity rationale for regulating
broadcasting; they seem determined to adhere to their traditional
regulatory scheme. The European Union's new directive
addresses the technical consequences of convergence; however, it
fails to consider that convergence might fundamentally change the
way TV-like services are provided. Although only a few months
old, the Directive already appears outdated. This article
welcomes the new Directive's approach which abandons
platform-specific regulation of media. The scale of
regulatory intervention, however, needs be matched with the
importance of the public interests involved. Viewed in this
light, the state's responsibility to provide, e.g., public interest
programming is limited; intrusive regulation should be applied with
restraint.