Cable Television Regulation

Cable television regulation began in the late 1940s and 1950s primarily as a local matter. The first cable systems needed easements to construct facilities on public and private land. Local authorities created franchises to provide access to rights of ways, and state regulators addressed questions of access to attach the cable plant to existing utility poles.

Federal regulation first began with questions of whether and how cable operators could retransmit distant and local broadcasters, a controversy that continues 40 years later. Importing major market stations into small communities that might have one TV station, for instance, bringing Denver stations to Casper, Wyoming, made for a good service for customers but created competitive issues for the local station. The Federal Communications Commission (FCC) set limits on the number and kind of stations that could be imported under ‘‘ancillary jurisdiction’’ approved by the U.S. Supreme Court. The Supreme Court also found no copyright liability on the cable operator’s part for carrying stations.

Congress began regulating cable, first in 1976 by creating copyright liability for station carriage in tandem with a cable compulsory copyright in those signals, and in 1978 with the first of several laws establishing pole attachment arrangements. In 1984, the first comprehensive federal cable law provided for explicit FCC authority, ground rules for granting and renewing franchises by localities, and public access and leased access channels.

In 1992, because of complaints over high cable rates and access by large-dish satellite competitors to program networks owned by operators, Congress passed the 1992 Act, which led to a complex set of rate regulation of cable rates (generally lifted in the 1996 Telecommunications Act.) The 1992 Act also imposed a requirement that operators generally ‘‘must carry’’ all local TV and alternatively granted TV stations the right to negotiate carriage rights, irrespective of the compulsory copyright created in TV signals in 1976.

The 1996 Telecommunications Act focused on facilities-based competition to incumbent local exchange carriers; cable, as the second wire to residences figured prominently in the debate. Although cable has provided some facilities-based phone competition using its hybrid fiber-coax plant, its primary new offering is cable modem service. Initially considered a cable service, the FCC in 2002 declared cable modem service an ‘‘interstate information service,’’ but judicial review may lead to the determination that it is a ‘‘telecommunications service.’’

As cable operators offer modem service along with Voice over Internet Protocol, the laws surrounding its video service may be less significant than its role as an operator of a broadband network. Policies relating to nondiscrimination of applications or attachments to cable’s broadband network have engendered considerable policy debates.

Another significant provision of the 1996 Act, Sec. 629, requires the commercial availability of set-top boxes, historically leased by the operator to subscribers both as a marketing matter and a way to control signal theft. Because digital transmissions pose new problems for copyright holders, regulations have also developed on how copying of cable programming may be accomplished along with rules for preventing unauthorized distribution on the Internet.

DANIEL L. BRENNER

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