Cable blackouts: Inconvenience or crime against humanity?

Over at Reason.com, I write today about the ongoing Time Warner-CBS blackout and point out that Congress and the FCC have tipped the scales in favor of broadcasters with, inter alia, free spectrum, must-carry power, retrans consent rights, network non-duplication rules, and my personal favorite, syndicated exclusivity privileges. It’s just not a fair negotiating environment. But, and this is important, two wrongs don’t make a right.

Trying to plan the market got us into this mess, and making new rules to try to “even out” the playing field is only further distorting the market. As I say,

Congress should completely deregulate the video distribution marketplace by repealing broadcaster’s special rights. While the they’re at it they should also end compulsory copyright licensing that allows video distributors like cable companies to pay regulated rates for the programs they retransmit, rather than negotiate. And they should privatize the spectrum, rather than continue to give it away to broadcasters in the name of the “public interest.”

You can read the whole thing here. And after you’re done, you can listen to my colleague Adam Thierer make much the same case opposite Susan Crawford on the Diane Rehm Show earlier today. Audio is available here.

Plugs out of the way, I want to take a moment to address a small point that really grinds my gears, as Home Simpson would say. It’s the constant refrain I hear about blackouts that consumers are being “victimized” by the impasse in negotiations. Some examples,

• Rep. Anna Eshoo: “It has been my long held belief that consumers should not be held hostage when retransmission disputes break down. Unfortunately, programming blackouts such as the one underway in eight U.S. markets have become far too common for consumers who simply want to enjoy the programming they pay for each month.”
• Michael Calabrese: “This sort of brinksmanship between broadcasting and cable behemoths is becoming increasingly widespread—with consumers held hostage.”
• Matthew Polka: “Shameful does not even begin to describe CBS’ brutal assault on consumers.”
• Michael Hiltzik: “It’s as though these two adversaries are conspiring to use their market power to victimize their customers.”
• Harold Feld: “[N]othing is going to prompt CBS to back away from further abusing consumers on a national basis and get both parties back to the negotiating table than the threat of actual legislation.”

Cry me a river. Really? “Hostages”? “Abuse”? “Victimized”? “Brutal assault”? I don’t know what most people think about consumers, but I don’t see them as such fragile creatures that the absence of a couple of television channels is the end of the world. If we had a completely free market in video distribution, as I’d like to see, you’d still probably see the occasional blackout when parties come to an impasse, but that’s just what happens in negotiations, and while consumers will never be pleased with such an outcome, I like to think that we’re all big boys and girls who can do without CBS or any other network for a couple of weeks while a messy market process works its way out.

First of all, if you can’t miss a show, today more than ever there are other ways to get the programming you want, including satellite, phone company video services, internet offerings like iTunes and Netflix, and even going to a friend’s house or a bar to catch a game. We can deal. We are not going to feel “abused” or “victimized” or “assaulted” as a result.

Second, and this is what really grinds my gears, it’s that the discussion seems to take for granted some kind of god-given right to television programming. Causing viewers to miss a couple episodes of Big Bang Theory is an inconvenience that will harm both companies’ reputations; it is not a human rights atrocity.

So, I really hope we can get past the “hostage-taking” and “abused victim” language when it comes to blackouts and acknowledge that consumers are adults, not fragile snowflakes. Market negotiations (and hopefully we’ll have real ones some day) are tough, messy things, and that’s OK. Viewers will deal by watching any of the other 300 channels, or visiting millions of websites, or taking a walk in the park.

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