Court Blocks Maine Attempt To Force Cable Providers To Sell Individual TV Channels
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For the better part of two decades, the cable industry has fought tooth and nail to prevent having to sell cable channels individually (a la carte). Historically, the cable industry's defense of this opposition is that letting consumers buy individual channels would do two things: kill off niche channels, and raise rates on consumers. Granted you're supposed to ignore that both things have been happening anyway. Despite streaming competition, cable rates continue to skyrocket, and cable operators themselves have been dumping less watched channels from their lineups anyway in a bid to shore up tightened margins.The streaming sector's impact on these issues remains a work in progress. And state or federal efforts to force cable providers to sell channels individually haven't gone particularly well.Case in point: back in September, Comcast sued the state of Maine for trying to force the company to sell users individual cable channels (LD 832). Comcast lawyers insisted that the new law violated the company's First Amendment rights, and told news outlets the law would "suppress competition and result in higher consumer prices and less program diversity." Historically, "this violates our company's First Amendment rights" is an argument telecom lawyers throw against the wall in every case in a bid to try and see if it sticks.In this case, it appears to be working. Comcast's argument was twofold: the law violated Comcast's editorial decision making right to require consumers to take bundles of programming, and violates the First Amendment's prohibition on speaker-based regulations -- since the law applies to incumbent cable providers but not other pay TV providers. It's that latter argument that appears to have swayed U.S. District Court Judge Nancy Torresen's decision to impose a preliminary injunction preventing the bill from taking effect. She appeared to be less swayed by Comcast's phony concern that such laws would raise cable TV prices:"At this initial stage, I cannot conclude that the State has carried its burden of showing that [the law] will, in fact, be likely to reduce prices and increase affordable access to cable," she said. But she also said: "The evidentiary record is weak at this point, but the record does contain evidence that cable pricing has greatly exceeded the pace of inflation over many years. This may provide a separate special characteristic that would support differential treatment of cable operators. Because I ultimately conclude that the State has not met its burden of showing that it is likely to succeed under intermediate scrutiny, I do not need to decide this issue at this time." At this point it's probably not worth trying to force cable's hand on this subject. In large part because growing competition in the pay TV space should ultimately do the heavy lifting here. Streaming competition is completely restructuring the pay TV landscape, resulting in traditional cable operators (especially those who refuse to compete on bundle flexibility or price) losing millions of pay TV subscribers each year. Even if this law fails, competition should ultimately pressure even Comcast to begin actually listening to consumers if the company wants to remain in the pay TV business.The real problem remains in broadband, where giants like Comcast have secured a growing monopoly thanks to US telcos that have lost interest in the fixed residential broadband market and refuse to upgrade their networks. As pay TV margins tighten from competition, giants like Comcast and Spectrum will simply raise the price of broadband, most prominently via bullshit usage caps and overage fees. And since we've effectively neutered most federal oversight of the barely competitive US broadband sector, it's a problem that's going to stick around for a while (no, 5G isn't a panacea).
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New Year's Message: Opportunities Come From Unexpected Places
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It's that time again. Ever since 2008, my final post of the year has been a reflection of some sort -- not necessarily on stories from the past year, but usually somewhat of an echo of what inspired me to write the original post in 2008. People had highlighted two seemingly contradictory things about me: that I was perpetually optimistic and happy about the state of innovation and future possibilities, but also that I seemed to focus so much attention and energy (some misleadingly have called it "anger") at efforts to impede, hold back, or simply block important and useful innovations. As I've said repeatedly, these two things are not in conflict. It is entirely possible to be optimistic about innovation, while frustrated at those who seek to prevent it, for whatever reasons. If you'd like to look over the stories from the past, they're all listed here:In this past year, as the so-called "techlash" narrative has gotten even stronger, and the first major efforts to chip away at intermediary liability (FOSTA in the US and the EU Copyright Directive in the EU) have been successful, even more of the people whose views I appreciate and respect have turned from being optimistic about technology towards being pessimistic and have made some arguments about how innovation has maybe gone too far and needs to be reined in somehow. I believe that, with the benefit of hindsight, we will eventually recognize that this techlash narrative was overblown (and often pushed by those with other agendas) and we will once again recognize that innovation has the power to make everyone better off.Last year's message was about experimenting and trying different things -- as we did that year in releasing our first game. This past year, we continued to do that in releasing our first fiction anthology, the "Working Futures" collection of science fiction about the future of work. We also did some more gaming work, and you'll see some details of that very, very soon (so stay tuned). This year also represented the end of a headache for us that has allowed us to finally put more focus on some of these new projects we had been hoping to do.Indeed, I think the key lesson learned from this year has been that opportunities for amazing things to happen can come from unexpected places -- and it's important to continue to keep an eye out for those opportunities. After all, they're the easiest ones to miss and let slip by.For example, I completed my long "Protocols, Not Platforms" article for the Knight 1st Amendment Institute at Columbia University, which has partly inspired Jack Dorsey to have Twitter begin an experiment with protocols that I'm excited to follow closely. You can assume I'll be writing more on this topic as well, and following developments in this space. At the very least, as a friend told me after Dorsey's announcement, it showed how the power of writing out ideas can help influence changes in the world. I certainly hope that Techdirt can continue to do exactly that, and again bring about more powerful, useful innovations that make the world a better place for everyone.This year, we also successfully sued ICE over publicly claiming that it had seized over a million domains, and then saying it had no responsive records when we asked for a list of those domains. Eventually, ICE disclosed to us that its own press release was misleading and it didn't really seize them. Unfortunately, that didn't actually stop ICE from making similar claims this year...Techdirt's think tank arm, the Copia Institute, also got quite a bit done this year, including releasing two major reports -- the 2019 version of The Sky is Rising, all about the state of the entertainment industry, and Don't Shoot The Message Board, with a quantitative look at how stronger intermediary liability protections drive innovation. We've also continued to focus on small gatherings and roundtable events, bringing people to discuss various challenges and opportunities regarding innovation. We've got more planned for 2020 as well.As we head into 2020, we hope to continue to experiment, to try different things, and to seek out those exciting unexpected opportunities. Of course, we can't continue to do what we do -- whether it's keeping Techdirt going or experimenting with these other ideas -- without your support. We've put together a handy-dandy page on all the different ways to support us so you can just go check that out. I'd also recommend checking out our Working Futures collection of short science fiction as well, since that's new this year.Finally, the last point I make each and every year is that what has always made Techdirt worthwhile was the community of folks here. That is: it's you reading this right now. In an era where so many journalism operations are pushing people away and chasing the latest trends and "clicks," we've always felt it best to try to focus on building a better community. The discussions by all of you, whether directly on the site or elsewhere, continue to make what we produce better and better each year -- and we can see what kind of impact that can have on the world around us. So thank you, again, for making Techdirt a special place where we can share and discuss different ideas. As always, I look forward to find out what you have to say in 2020.
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