Escaping The Black Hole Of Television Blackouts

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CBS crossed a line from permissible hardball tactics to unfair consumer abuse when it blocked TWC broadband subscribers from accessing content on CBS.com. The FCC needs to enforce rules on consumer protection, and Congress needs to fix the broken system of retransmission consent.


Time Warner Cable (TWC) subscribers find themselves suffering through no fault of their own in what has become an all too familiar scenario for cable and satellite TV subscribers. After months of negotiation, CBS and Time Warner Cable could not come to terms for carriage of CBS’ broadcast programming or its Showtime premium cable network. As a result, Time Warner Cable video subscribers can no longer watch CBS or Showtime in several major markets.

But then CBS went further. To put more pressure on TWC, CBS blocked all subscribers to TWC broadband from accessing certain content on its CBS.com website. This punishes not just the Time Warner Cable video subscribers in the markets impacted by the blackout, but also TWC broadband subscribers who live outside the blacked out markets, and those that rely on free over-the-air TV or use a pay TV provider other than TWC (e.g., DIRECTV).

CBS’ blocking tactic clearly violates the ‘rules of engagement’ Congress intended when it created the “retransmission consent” system that allows CBS to pull its signal and demand payment from Time Warner Cable. The FCC needs to use the power Congress gave it to protect the public and the public interest by making it clear to CBS (and other broadcasters in the future) that punishing broadband subscribers to put pressure on a cable company over a carriage dispute is not acceptable.

Not Choosing Sides, Protecting The Public.

CBS and Time Warner Cable have spent lots of time and effort trying to persuade the public that the other company caused this mess. 

Bluntly, no one cares. They just want the abuse to stop. Television subscribers are sick of being held hostage in disputes and, through no fault of their own, not getting the programming for which they pay way, way waaaaay too much.

For reason you can read about at length here, Congress in 1992 gave broadcasters the right to demand cable operators pay to retransmit this free broadcasting signal, thus spawning the current consumer-abuse machine known as “retransmission consent.” But Congress did not leave the public entirely at the mercy of whatever consumer abusing practices might evolve from this primordial ooze of regulatory protectionism. Congress empowered the FCC to set some limits on the steel cage death match between cable and broadcasters.

Unfortunately, as I rather infamously wrote here in 2010, the FCC has traditionally preferred to fold its hands and sit on the sidelines rather than do its job as a referee making sure it’s a fair fight and that the viewing public doesn’t get hurt.

But the FCC doesn’t need to actually resolve the dispute between CBS and TWC. It can – and should -- tell CBS to stop blocking broadband subscribers from getting content on CBS.com.

We need the FCC to step up, do its job and protect the millions of broadband subscribers who have nothing to do with this fight.  The FCC may believe that Congress authorized a steel cage, no holds barred, death match between cable providers and broadcasters around access to local broadcast signals; it did not authorize CBS to drag in millions of broadband subscribers and punish them as a means of putting additional pressure on Time Warner Cable.

Finally, we have a lot more at stake here than just the current fight between CBS and TWC. If the FCC continues to sit on the sidelines, then this will become an acceptable tactic for future retransmission consent fights. It used to be that only actual pay TV subscribers had to deal with this. Now all consumers will get to share the pain – unless the FCC steps up and does its job to keep this fight contained.

CBS President and CEO Les Moonves declared last week: “we are at war with Time Warner Cable.” But that doesn’t make millions of Time Warner Cable broadband subscribers who have nothing to do with this fight acceptable ‘collateral damage.’  Congress set rules of engagement that protect consumers, and we expect the FCC to enforce them.

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