There is an old vaudeville routine I’ve found more useful for understanding lawmaking in Washington than any textbook. It goes something like this:
(Scene: a nighttime street corner illuminated by a single streetlight; a short man (Joe) is frantically searching for something near the base of the streetlight when a tall man (Bill) enters from stage left.)
Bill: Hi Joe. Did you lose something?
Joe: I was buying a hot dog at the cart down the street, and when he was giving me my change, I dropped a quarter.
Bill: Well if you dropped it down the street, why are you looking here?
Joe: Cause the light’s better here.
When constituents are unhappy, no matter the cause, they make sure their representatives in Congress know it. In turn, a good politician knows that the worst possible response is to say there really isn’t anything government can do to fix the problem. So the legislator promises to take immediate action to remedy the constituent’s complaint. Often, however, the constituent’s issue lacks a governmental solution, or the only solution would create yet worse problems.
As a result, the desire to demonstrate responsiveness leads to legislation that does nothing to actually solve the constituent’s problem, and sometimes makes matters worse. However, as long as the legislation relates in some way to the subject matter of the complaint, the legislator can claim to have addressed the needs of his or her constituents. Rather than face the difficult task of explaining the complexities of the issue to constituents, and why the system is working as intended (or at least better than any of the available alternatives), legislators will search for an irrelevant solution where “the light’s better.”
I was reminded of this last week by an exception that proves the rule. Chairman Wheeler announced the FCC would terminate without further action its congressionally-mandated review of the Commission’s rule requiring that parties to retransmission consent negotiations negotiate in good faith. Congress had urged the review in response to heavy lobbying from the cable and satellite TV industries for changes to the retransmission consent regime, as well as in response to complaints from viewers frustrated by their pay TV provider’s programming disruptions. Specifically, Congress directed the FCC to “commence a rulemaking to review its totality of the circumstances test for good faith negotiations under clauses (ii) and (iii) of section 325(b)(3)(C) of the Communications Act of 1934.”
To understand this mandate requires going back to 1999, when Congress passed the Satellite Home Viewer Improvement Act (“SHVIA”). SHVIA changed copyright law to allow satellite TV systems to retransmit local TV stations, putting satellite TV on an equal competitive footing with cable TV for the first time. Cable operators had been retransmitting local TV stations for decades, but the lack of a broad compulsory copyright license for satellite providers meant that most subscribers were ineligible to receive broadcast programming via satellite.
Given the monopolistic power of most local cable systems at the time, there was a concern that cable operators would apply pressure on local stations to withhold retransmission rights from satellite providers to preserve cable TV’s continued stranglehold on the programming most desired by pay TV subscribers. To address this fear, Congress included in SHVIA a provision that would “prohibit a television broadcast station that provides retransmission consent from . . . failing to negotiate in good faith ….” That the purpose of this requirement was not managing the negotiations themselves, but ensuring that all new entrants, including satellite TV, had an opportunity to negotiate for broadcast programming, was made clear by three associated facts.
First is that good faith negotiation was strangely required of only the broadcaster; the pay TV provider had no such obligation. This imbalance of rights would have been unthinkable had the purpose of the good faith obligation been to ensure fair negotiations, but it made sense where broadcast programming was in such high demand that requiring pay TV providers to engage in negotiations with local TV stations seemed entirely unnecessary. Continue reading →