With the news that ABC is delivering popular "television" programming to a "computer" screen near you, can there any longer be doubt that the old regulatory and constitutional regime for video programming is crumbling? More and more prime programing, such as NCAA March Madness basketball games and that show about those Depserate Housewives, is now being delivered over the Internet and even via wireless to cellphone screens, not to mention over "cable" and "satellite" and "DVD", that it is clear that it makes no sense to regulate video programming differentially depending on the technological platform used to deliver it. Indeed, as I said in my recent testimony before the House Telecommunications and Internet Subcommittee:
"[I]n light of the competition that presently exists and which will continue to develop, the Committee should consider going further to reduce the regulatory requirements applicable to the cable operators, especially in the area of content regulation, where the First Amendment rights of the providers are implicated. And, once it establishes a national framework for cable operators applicable to new entrants and incumbents, as much as possible, it should apply to them in like manner."
The bottom line is, even if there once was a policy rationale for public interest-type content regulation of video programming, in today's environment with alternative modes of video delivery and consumer-friendly technological controls, there is no longer a policy rationale for government mandates dictating programming requirments. We need not fear that viewers will be deprived of programming they demand or be subjected to programming they don't want to see. More fundamentally, in this environment, content regulation, including the regulation of over-the-air broadcasting, offends basic First Amendment freedoms.
Way back in 2000, my former colleague Jeff Eisenach and I filed comments in the FCC's Digital TV proceeding arguing against the imposition of content regulations on DTV licensess, or other video programming distributors. We said:
"Obviously, a regime which subjects speech to differential First Amendment treatment based on the label given to the viewerâ€™s screen ("TV", "computer," "Palm Pilot"), or on the medium through which one image or another in a bundle of services was transmitted, makes no common or constitutional sense, and it is not long for this world."
"Long for this world" has a certain peculiar meaning when speaking of FCC regulation--and this is particularly so with regard to programming that interest Congresspersons who want to maintain their own power to define what programming is in "the public interest". As my collegue Adam Thierer rightly--and often--points out, there is a danger that, rather than being lifted in the face of video abundance, content regulation will spread to heretofore unregulated screens, like the ones we now call computer montors and cellphones. But I predict the First Amendment will win out, and in the not too distant future.