Proposed Law Aims To Curb TV Blackouts, Let You Choose To Pay For Broadcast Channels

In the wake of the month-long blackout that affected 3 million CBS viewers in several major cities and Showtime subscribers nationwide, Congresswoman Anna Eshoo of California has drafted legislation that would give the Federal Communications Commission the authority to prevent blackouts, and give consumers the right to decide whether or not they want to pay for watching broadcast networks on cable.

Eshoo announced the Video CHOICE (Consumers Have Options In Choosing Entertainment) Act earlier today in advance of a Communications and Technology Subcommittee (of which the Congresswoman is Ranking Member) hearing later this week.

The law would not give the FCC any ability to force an end to carriage and retransmission fee disputes that too-frequently result in blackouts. Instead, it would give the agency the authority “to grant interim carriage of a television broadcast station during a retransmission consent negotiation impasse.” In plain English, neither broadcasters nor cable/satellite providers would be able to use blackouts as leverage. The catch, it appears, is that this only applies to blackouts of broadcast networks, so even if the law passed basic and premium cable channels could still be blacked out during a dispute.

However, a second provision of the CHOICE act would separate broadcast networks from wrapping up their retransmission negotiations with cable stations they own. So when the CBS contract with Comcast expires, for example, the contract negotiations for the broadcast network would be separate from network-owned or affiliate channels. Thus, Showtime would not have been blacked out for all Time Warner customers had this bill been in place.

So while the first part of the proposed law still allows for blackouts of cable channels, the inability to include broadcast networks in the blackout would hopefully reduce the likelihood of anything being blacked out.

A common refrain heard from people unaffected by the recent CBS/Time Warner Cable blackout was “Why don’t you just get an antenna?” Unfortunately, for people in several sections of L.A. and NYC — the two largest cities impacted by this latest blackout — even the best antenna is virtually useless. But for those consumers who can get their broadcast stations over an antenna and are sick of paying a fee for what can be watched freely over the air, the CHOICE Act seeks to give you an option, by allowing consumers the option of buying cable service that doesn’t include broadcast TV.

Finally, the CHOICE Act calls on the FCC to study just why on Earth we all have to foot such a huge amount of money for ESPN (estimated at around $4-5 per month per customer) and other sports programming. This may not end in any sort of new regulation, but maybe it will help bring some transparency to what is easily the most expensive portion of any basic cable bill.

“A vibrant video marketplace is one in which there is healthy competition, consumer choice and basic protections to ensure consumers aren’t caught in the middle of a dispute they have no control over,” Eshoo said in a statement. “Recurring TV blackouts, including the 91 U.S. markets impacted in 2012, have made it abundantly clear that the FCC needs explicit statutory authority to intervene when retransmission disputes break down. This discussion draft is intended to spur constructive, actionable debate on ways to improve the video marketplace for video content creators, pay-TV providers and, most importantly, consumers.”

Now the question is whether or not this legislation will pass. That will likely depend on whether broadcasters — who are generally just fine with the antiquated retransmission consent rules — put up more money to lawmakers than cable companies, who desperately want these rules updated for the digital age. Of course, Comcast is both the nation’s largest cable companies and the owner of one of its largest broadcasters, so the ball will probably drop on whichever side of the net Comcast wants it to drop on.