Friday, October 10, 2008 - The Progress & Freedom Foundation Blog

MAP in Wonderland

It really is remarkable what you can ask of the FCC when words cease to have meaning. A few months ago, MAP and its allies were importuning the FCC to prohibit the use of bundled programming contracts by independent programmers, i.e., to mandate "wholesale a la carte." Never mind that there is absolutely nothing in the Communications Act suggesting that the FCC has regulatory jurisdiction over such contracts, MAP asserted that bundled program offerings make it more difficult for certain programmers to find shelf space on cable systems and demanded that the FCC do something about it.

This organization and various others were quick to call foul. The FCC, for one thing, cannot just make up its own jurisdictional limits - it is a creature of Congress and it can do only that which Congress empowered it to do. Moreover, the entire MAP argument was premised on content preferences. In a world of limited cable capacity, any rule designed to assist one set of programmers in obtaining carriage necessarily disfavors others. Any such rule, even if facially content neutral, would clearly be content based in practice and thereby subject to strict scrutiny.

For reasons that are not entirely clear, MAP in its latest filing seems to be abandoning the position that the FCC should outright bar independent programmers from using bundled programming contracts; instead MAP now wants the FCC to regulate the rates, terms, and conditions of those contracts. Again, though, MAP fails to point to any specific grant of authority for the FCC to do so.

But here's where we go though the looking glass and into a world where words mean only what the Humpty Dumpties at MAP want them to mean. For in the months since MAP's original filing, the FCC issued its historically flawed Comcast network management decision in which it strayed into a legal area so remote from its organic statute as to be wholly foreign. Not surprisingly, MAP finds great comfort in the FCC's willingness to unmoor itself from its statutory limits.

So, for example, MAP argues with renewed vigor that Section 628 of the Communications Act allows the FCC to regulate programming contracts of independent programmers. In the course of their argument, MAP essentially concedes that the provision in question does not "technically" cover the contracts that MAP would like the FCC to reach. But that should be no bar, MAP continues, the fact that Section 628 is explicitly directed at only vertically integrated programmers really was sort of an oversight by Congress and we all know that the companies offering bundled programming contracts are really just as deserving of regulation. "I know I technically was speeding, officer, but the city did not really mean to make this road a 25 MPH zone when it established the limits, that merely was a suggestion of what might be a safe speed."

MAP similarly twists the plain language of Section 616, whose limiting language applies solely to certain behaviors by cable operators vis-à-vis independent programmers, because, again, it doesn't matter what the statute actually says, the important thing is - at least according to MAP - what MAP thinks Congress intended.

And of course, then the real mischief begins. Once the specific statutory grants can be read in a sort of fuzzy, deontological way, the FCC's ancillary jurisdiction expands beyond almost any limiting principle. It is as if MAP were saying: "Let's not concern ourselves with all of that troublesome legalese in the Communications Act, Congress simply wanted what is best and right for the world, and we can always tell you exactly what that entails in any given factual setting."

Unfortunately, MAP finds solace in the FCC's Comcast order where, in essence, the FCC blessed precisely that sort of approach. Much has been written already on the Comcast order, some of the best of which is by my colleague Barbara Esbin, and I will not reprise that material here. All I will add is that MAP might just as well have found support from the legal proceedings against Alice in Wonderland wherein the King scribbled out "rule forty-two" and then read it aloud, declaring that all persons more than a mile high were to leave the court. When Alice objected that it was not a regular rule but one he had just invented on the spot, the King declared earnestly, "it is the oldest rule in the book," and charged the jury to reach a verdict. An agency that does not take its specific statutory powers seriously, in conjunction with ancillary "necessary and proper" powers, is a dangerous thing in a representative democracy.

Fortunately, however, the Constitution remains a final bulwark against over-reaching by over-zealous bureaucrats. Here, in particular, the Constitutional impediments to MAP's demands remain. MAP baldly asserts that its proposals are not content specific and therefore should raise no significant constitutional questions. Almost in the next breath, apparently serenely ignorant of the tension in its argument, MAP goes on to explain that regulation of independent program agreements is necessary because some programmers have more success gaining carriage on cable systems than others who provide - to MAP's judgment - more diverse programming. So which is it, are the proposed rules designed to favor certain classes of programmers or not? Maybe in MAP's Wonderland words can contain their opposite and not destroy themselves. It doesn't work that way in the law.

posted by W. Kenneth Ferree @ 7:02 PM | Mass Media , The FCC