Who Will Regulate Internet Television?

The lead story in the Business Section of the July 4th Sunday edition of the San Francisco Chronicle, "Internet products ready to challenge cable TV", written by James Temple, focused on the upcoming launch of Google TV, a new service rolling out this fall that blends online streams and broadcast programming viewable on television screens. Temple notes that Hulu.com, the popular online video site, recently announced plans to offer a subscription service that will deliver broadcast shows online to computers and mobile devices like the iPhone.

The goal of all of these new services is to woo viewers away from cable subscriptions or "free" television on the broadcast networks, in favor of the more interactive capabilities of Internet television, in which you select what you want to watch, when you want to watch it, and to some degree, even interact with what's on the screen.

The second half of Temple's article suggests that cable and satellite companies, and the broadcast networks are also developing ways to deliver their services to the Web, so as not to be left behind the technology curve. This last point got me thinking about author Ken Auletta's 1992 national bestseller, Three Blind Mice: How the TV Networks Lost Their Way. Auletta chronicled how NBC, CBS and ABC failed to recognize the threat cable posed to their business model, and how they lost the majority of their profits and market share as a result.

While I agree with Temple that these players have learned from their prior error, and most likely will, in some fashion, retain their seat at the table in the new formats for the delivery of video content, a different concern about this change in direction may prove less susceptible to easy transition. The concern I am focusing on is the regulatory structure for video content that presently is the turf of the Federal Communications Commission and the federal government through Congress and its media related committees.

Regulation of content in the earliest days of broadcast television was heavily controlled and restricted by the FCC and Congress, based on the argument that only limited bandwidth was available. The grant of rights to broadcast on that bandwidth could therefore be conditioned on compliance with a wide array of regulation, including content (networks were required to meet obscenity standards, provide hours of programming for children, and provide news programming).

These standards loosened up with the development of cable television, as the availability of channels grew, and niche television programming became a reality. However, the cable industry remained located in the United States, and local programming also remained a mainstay of the television industry, guaranteeing that FCC and federal government regulation would still play a significant role in the television industry.

Internet television carries the possibility that this regulatory structure will no longer apply. Google TV promises to make the entire Internet available on your television. At that point, the regulation of content now enforced by the FCC and the federal goverment falls by the wayside in the same way those agencies and entities do not, and cannot, regulate what computer users see online. This will place the responsibility for regulating content on filtering systems, which have proven notoriously ineffective (for an analysis of the weaknesses of filtering systems, see my article, The Baby With the Bath Water: The ALA v. U.S. Case and the Application of Mandatory Filtering to Public Library Internet Access – Lead Article in the Spring 2006 issue of the Syracuse University School of Law’s Law and Technology Reporter).

As is often the case with technology innovations, the legal system follows along after each new wave and attempts to find, either through existing law or sui generis creation of new law, a way to accomodate for the diverse interests affected by the change. Stay tuned for that effort following the introduction of Internet TV this Fall.