Abstract
This article traces the efforts by the U.S. Federal Communications Commission to promote the entry of new networks, starting from its regulation of radio networks under the Chain Broadcasting Rules, through its regulation of broadcast television networks under its Financial Interest and Syndication Rules and its Prime Time Access Rule, and finally to its regulation of cable television networks under its Channel Occupancy and Leased Access Rules and its National Ownership Cap. The article’s principal conclusion is that these efforts by the FCC were largely ineffectual and that only the removal of regulatory barriers to new network entry could, and indeed did, achieve the Commission’s goal.
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Notes
Communications Act of 1934, Sec. 303 (i). Chain broadcasting is the “simultaneous broadcasting of an identical program by two or more connected stations,” (47 U. S. C. A. § 153 (9)), what today we would call networking.
The Commission also adopted a rule that prevented a network and an affiliated station from agreeing to deny a network program that the station chose not to carry to another station that served the same market. If anything, this made it more rather than less likely that the station would choose to carry a network program since otherwise the program might be carried by another station with which it would have to compete.
In 1941, the Department of Justice filed complaints against NBC and CBS, alleging extensive violations of the Sherman Act. After the Supreme Court upheld the FCC’s authority to issue the Chain Broadcasting Rules and, as a consequence, NBC had agreed to divest its Blue Network, the Department withdrew its complaint. See Note (1951, p. 109), for a discussion of this episode.
It is important to note, however, that, under some circumstances, greater program “variety” may result if networks are under common ownership. This can occur because independently-owned networks may choose to “duplicate” each other’s programs, and thereby capture a share of a “mass” audience, whereas jointly owned stations may choose to offer differentiated programs in order to appeal to different audience segments. For an early model that obtains this result see Steiner (1952). Berry and Waldfogel (2001) found that greater concentration that results from a reduction in the number of different radio station owners in a market leads to an increase in the number of different program formats that are offered in that market. Similarly, Chipty (2007, p. 27) found that “stations are more spread out across existing formats in more concentrated markets.” Finally, Sweeting (2010, p. 392) found that “common owners differentiate their stations, but also tend to make them more similar to their competitors.”
Note (1951, pp. 92–94).
Network Study Staff (1958, pp. 637–638), emphasis added. Similarly, Barrow (1957, p. 615) noted: “There is little prospect that the degree of concentration can be reduced by entry of new nationwide networks until there are substantially more comparable station facilities than now exist in the top 50 or 100 markets of the country.” Roscoe L. Barrow was the Director of the Network Study.
For a good discussion of this episode see Schuessler (1981, pp. 895–926).
At the same time, the Commission also adopted rules that affected the relationship between the television broadcast networks and the suppliers of their programs, further expanding its regulation of the small number of networks that its policies had created.
The reasons for this involve both the superior technical characteristics of VHF transmissions and the fact that, at least in the early days of television, many receivers did not have tuners that were capable of receiving UHF transmissions. This disparity is now largely eliminated since the vast majority of viewers receive broadcast network programs through cable television systems. Earlier, the Congress had enacted the All-Channel Television Receiver Act of 1962, which gave the Federal Communications Commission the authority to require that all television receivers sold to the public had the capability of receiving both VHF and UHF signals. For an analysis of the impact of the Law see Webbink (1969).
See Note (1962) for a discussion of these proposals.
See Park (1975). For that reason, the eventual entry of the Fox Network in the 1980s came as a surprise to many industry observers. Two other broadcast television networks, UPN and WB, later combined into the CW Network, began operation after the launch of Fox. However, neither they nor their successor were financially successful. For example, it was reported that UPN and WB lost about $2 billion during the period when they were on the air (Dana 2008). In an attempt to achieve profitability, CW has recently turned to expanded Internet distribution (Schechner and Stewart (2012)).
Park (1972, p. 147) found that cable systems that carried large numbers of distant signals had significantly higher penetration rates than did systems where signal carriage was more constrained by FCC rules. In particular, he concluded that “Distant signals carried in accordance with the FCC’s proposed rules contribute substantially to expected [cable system] penetration. Without distant signals, penetration would be 5–10 percentage points lower than the figures cited above.”
For a review of these developments see Besen and Crandall (1981, pp. 85–97).
Not surprisingly, broadcasters tended to exaggerate the extent to which they would be adversely affected by the introduction of cable. For example, Park (1971, p. 73) found that “concern over the potential impact of cable growth on television broadcasting is misdirected on several counts. \(\ldots \)Stations in larger markets\(\ldots \)would on average be little hurt by unrestricted cable growth\(\ldots \).non-network UHF stations (the objects of particular FCC concern) stand to gain substantially from cable growth, because cable puts them on the same technical footing as competing VHF stations.” He also found that “Stations in smaller markets, for which FCC policy provides no protection, would suffer severe revenue reduction due to cable at ultimate penetration.” (Ibid., emphasis added)
Federal Communications Commission (1972, para. 92).
Home Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9, 35 (1977).
Federal Communications Commission, Cable Television Report and Order, 36 FCC 2d 143 (1972). These rules are analyzed in Besen (1974).
Federal Communications Commission, Report and Order in Docket Nos. 20988 and 21284, 79 FCC 2d 663 (1980).
Malrite T.V. of New York, et al. v. Federal Communications Commission, 652 F.2d 1140, 1147 (1981), emphasis added.
See Spence and Owen (1977) for an analysis of the effects of the introduction of direct viewer payments on the types of programs that are offered. The existence of ANA Television (“provides news, public affairs, educational and entertainment programming in Arabic and English to Arab-Americans and Arab-Canadians”), SPEED (“motor sports and the passion for everything automotive”), FEARnet (“horror, thriller, and suspense entertainment”), Collectors Channel (“entertaining and educational programming, with some shopping elements, for collectors and vendors of eclectic and investment-quality collectible merchandise”), Ovation (“art and contemporary culture”), Military History Channel (“dedicated exclusively to the vast array of military history, to air 24-hours/seven-days-a-week”), Golf Channel (“offers in-depth coverage of more than 100 tournaments including the PGA Tour, Champions Tour, Nationwide Tour, LPGA, European Tour, Sunshine Tour and PGA Tour of Australia. Also featured is private instruction from golf’s top teaching professionals, plus up-to-the-minute golf news and stats each day”), and Food Network (“one-time and recurring (episodic) programs about food and cooking”) gives some sense of the wide variety of offerings that are now available. The increase in the number of networks has also led to reduced concern about multiple-network ownership. Whereas the Dual Network Rule, which applied to both radio and television broadcasting networks, limited any owner to a single network, entities such as Comcast/NBCU, CBS, Fox, and the Walt Disney Company each have interests in a number of national programming services. Indeed, as this list indicates, all four of the national television broadcast networks are owned by entities that also own national cable program services.
Federal Communications Commission, First Report and Order, 22 FCC 2d 86 (1970).
Federal Communications Commission, Second Report and Order, 35 FCC 2d 844 (1972).
American Telephone & Telegraph Company, 42 FCC 2d 654 (1973); GTE Satellite Corp., 43 FCC 2d 1141 (1973); RCA Global Communication, Inc./RCA Alaska Communications, Inc., 42 FCC 2d 774 (1973); Hughes Aircraft Co./National Satellite Services, Inc., 43 FCC 2d 1141 (1973); and American Satellite Corp., 43 FCC 2d 348 (1973).
Federal Communications Commission, Domestic Fixed-Satellite Transponder Sales, 90 FCC 2d 1238 (1982).
In addition to the regulations of the network-affiliate relationship discussed here, the Commission also began to regulate the relationships between the broadcast networks and the suppliers of their programs. For a discussion of the Financial Interest and Syndication Rules, see Besen et al. (1984).
In modern parlance, these would be characterized as loyalty contracts. For an analysis of such contracts see, e.g., Zenger (2012). Stations are paid for carrying network programs through a combination of cash compensation and revenues from the sale of advertising spots that are reserved for them within and between network programs. For a description of this arrangement, see Federal Communications Commission (1980, Volume II, Background Reports, pp. 144–153) and Besen and Soligo (1973).
Federal Communications Commission (1980, Volume II, Background Reports, pp. 260–268). The results reported in the text are based on data supplied by the networks. Similar results were obtained using data obtained from Arbitron. The analysis found that clearance rates were higher for network-owned stations than for affiliates, for stations in smaller markets than for those in larger markets, and when there was a competing VHF independent station in a market. The current author was Co-Director of the Network Inquiry Special Staff. Economists Incorporated (1995) reported that average clearance rates in 1994 were about 98 % in prime time and about 90 % in non-prime time. They also reported that the total number of hours of programming offered by ABC, CBS, and NBC had declined by about 25 hours per week between 1977 and 1994, with the entire decline occurring in non-prime-time programming.
The rule banned the carriage during the access period of “off-network syndicated programs”: programs that had previous been carried on one of the networks.
Note that this is similar to what occurred when the Chain Broadcasting Rules were adopted for radio. In neither case did part-time networks enter in response to the change in policy.
Economists Incorporated (1995) estimated that total viewing was about 1.5 percentage points lower than what it would have been if network programming had been offered during that time period.
In addition to allegations that cable operators have engaged in foreclosure of rival program services, there have also been claims that vertically integrated operators had or could deny competing Multichannel Video Program Distributors (MVPDs) and competing Internet Service Providers (ISPs) access to their programming services. In response to these concerns, the FCC adopted a series of “program access” rules and imposed similar conditions in approving mergers in order to ensure that rival MVPDs—primarily Direct Broadcast Satellite (DBS) operators and telephone companies—would have access to popular program services. These rules make it extraordinarily difficult for cable operators to obtain exclusive distribution rights in the program services that they carry. In recent years, both DBS service and telephone companies have become formidable competitors to cable in the distribution of video programming together accounting for about 45 % of all multi-channel video subscribers (Broadcast Engineering 2012). Goolsbee and Petrin (2004) found that DBS entry has reduced cable prices by about 15 % and raised cable service quality.
This theory underlies those portions of the Cable Television Consumer Protection and Competition Act of 1992 (“1992 Cable Act”) that led to the adoption of the FCC’s national ownership cap and channel occupancy rules. The adoption of the 1992 Cable Act was itself preceded by private antitrust suits that were brought by Viacom against Time Warner and TCI, alleging that these vertically integrated Multiple System Operators (MSOs) had favored their own movie services, either by failing to carry Viacom’s Showtime service, or by demanding onerous carriage terms for doing so. These suits, which were eventually dismissed, alleged that Time Warner and TCI, by unfairly favoring their own movie services, had denied Showtime the “critical mass” of subscribers that it needed to survive and prosper. In addition to the rules described in the text, the FCC also adopted “program carriage rules”, which prohibited a cable operator from requiring a financial interest in a program service as a condition of carriage, coercing exclusive rights as a condition of carriage, refusing to carry a program service because it was unaffiliated with the MVPD, and discriminating against an unaffiliated service in the terms or conditions of carriage.
The rule provides that no more than 40 % of the first 75 channels on a cable system can be occupied by program services in which the system owner has an “attributable interest,” i.e., more than a 5 percent voting interest, more than a 33 % equity-plus-debt interest, any general partnership or limited partnership interest, or Board membership or officer status.
The idea behind the cap is that large cable operators are, because of their size, able to harm rival program services significantly, either by refusing to carry them or disadvantaging them in some other way, while smaller MVPDs are not. To prevent any MVPD from acquiring such power, the Commission placed a ceiling on the proportion of MVPD subscribers that can be served by a single entity.
The rule requires that a cable operator with 36 channels or more make available 10 % of its channel capacity, and a cable operator with 55 channels or more make available 15 % of its capacity, for commercial use by “persons unaffiliated with the operator” and requires the operator to place leased access programming on tiers (i.e., bundles of cable channels that are offered to subscribers) that have a subscriber penetration of more than 50 % where the lessee desires to have the programming placed in a program tier.
For an analysis of the merger see Besen et al. (1999). Later, in connection with the AOL-Time Warner merger, both the FTC and the FCC imposed conditions that required the merged entity to provide access to Time Warner cable systems to competing Internet Service Providers and not to discriminate against these competitors. See Federal Communications Commission, Memorandum Opinion and Order In the Matter of Application for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner Inc., Transferee, CS Docket No. 00-30, Adopted: January 11, 2001, Released: January 22, 2001, ¶57, which describes some of the terms of the FTC Consent Agreement, and ¶99–100, which describe additional conditions that were imposed by the FCC to prevent discrimination beyond those in the Agreement.
See Federal Communications Commission (2006).
Federal Communications Commission (2011), Appendix A, III, Conditions Concerning Carriage of Unaffiliated Video Programming. The FCC also imposed a number of other conditions including provision for commercial arbitration in the event that a competing MVPD is unable to reach a carriage agreement for Comcast-NBC Universal programming. For an analysis of the merger, see Rogerson (2014).
Ibid., Appendix A, I, Definitions.
Ibid., para. 118. The FCC recently upheld a ruling of its Media Bureau that had found that Comcast had failed to live up to its promise to carry independent networks within blocks of similar channels and ordered Comcast to place Bloomberg Television in a “news neighborhood” (Federal Communications Commission 2013).
In a recent decision, the United States Court of Appeals for the D.C. Circuit overturned an FCC ruling that would have required Comcast to carry the Tennis Channel as widely as (i.e., on the same tier as) its own sports channels: the Golf Channel and Versus. The court’s ruling was based on its finding that the Commission had not shown “any benefit for Comcast from incurring the additional fees for assigning Tennis Channel a more advantageous tier\(\ldots \).” [Comcast Cable Communications v. FCC, 717 F.3d 982, 988 (2013)] The United States Supreme Court declined to review the Tennis Channel’s appeal.
Earlier, Crandall and Furchtgott-Roth (1996, pp. 17–18) had observed that “There is no evidence that MSOs discriminate against basic cable networks that they do not own\(\ldots \) there is considerable evidence that the two major premium networks\(\ldots \)are more likely to be carried by systems that are controlled by the [Multiple System Operator] that owns the network and less likely to be carried by systems controlled by the MSO owning the other network.” Nonetheless, they concluded that, rather than being evidence of foreclosure, these results “may reveal little more than the rationality of the companies’ managements or the difficulty in negotiating efficient contracts, or both.”
Federal Communications Commission (2012, para. 4) reports that “video services of Verizon FiOS and AT&T U-verse were available to one-third of U.S. homes and accounted for approximately 7 % of all MVPD subscribers” at the end of 2010. More recent data suggest that telephone companies currently account for about 9 % of all multi-channel video subscribers (Broadcast Engineering 2012).
Federal Communications Commission (1994, para. 48).
Federal Communications Commission (2012, para. 44).
Several recent transactions have had significant effects on the extent of integration between program services and MVPDs. These include the sale of News Corporation’s interests in DIRECTV and Time Warner’s spin-off of Time Warner Cable, both of which reduced the extent of integration, and Comcast’s acquisition of NBC-Universal, which increased the extent of integration. Some small program services have expressed concern that the proposed acquisition of Time Warner Cable by Comcast would make it more difficult for them to obtain distribution. See Flint (2014).
The rule is also intended to deal with the possibility that large MSOs would be able to exercise monopsony power in their dealings with program services.
Recall, however, that the rule applies to all cable MSOs, whether or not they have program service interests.
Federal Communications Commission (2008, paras. 49–68).
Ibid., para. 67. The Commission had earlier calculated that the “open field” had to be 40 % of all MVPD subscribers by combining an assumed 50 % carriage rate with the assumption that 20 % penetration was required for program service viability. This, in turn, implied a 60 % cap. The FCC then derived a 30 % cap for any single MSO by assuming that two large MSOs could collude to foreclose a rival service. That analysis was rejected by the Court of Appeals, which found no basis for the FCC’s collusion assumption, and remanded the matter to the FCC for further consideration. [Time Warner Entertainment Co. v. FCC, 240 F.3d 1126 (D.C. Cir. 2001)]
For a somewhat more extended discussion of the factors that limit the incentives of a vertically integrated cable operator to foreclose a rival program service, see Besen et al. (1999, pp. 469–472).
Comcast Corp. v. FCC, 579 F.3d 1, 8 (2009).
Ibid. A number of years ago, Owen (1999, p. 324) speculated that “the Web may compete with television simply by offering consumers and advertisers another alternative”; and a number of companies—most notably Amazon, Hulu, and Netflix—have begun to offer original programming that is available only over the Internet. [See Barr (2013) and Gim (2013) for descriptions of these initiatives.] Although this development is very new, it may further limit the incentives of traditional television outlets to deny or limit access to their viewers by competing programmers. In addition, a number of cable operators are in discussions about an arrangement in which they would offer Hulu’s Internet subscription service as part of their television bundles. [See Ramachandran and Sharma (2013).] In Verizon v. Federal Communications Commission, 740 F.3d 623, 630 (2014), the U.S. Court of Appeals for the D.C. Circuit recently vacated the FCC’s anti-discrimination and anti-blocking rules, which regulated the relationships between broadband providers and “edge providers\(\ldots \) who\(\ldots \).provide content, services, and applications over the Internet”, because the Commission had failed to establish that these rules did not impose common carrier obligations on broadband providers.
The operator can use any of the capacity that is not leased for other purposes.
Network Inquiry Special Staff (1980, p. 15).
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Besen, S.M. Trying to Promote Network Entry: From the Chain Broadcasting Rules to the Channel Occupancy Rule and Beyond. Rev Ind Organ 45, 275–293 (2014). https://doi.org/10.1007/s11151-014-9424-1
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DOI: https://doi.org/10.1007/s11151-014-9424-1