Earlier this year, FCC Chairman Tom Wheeler became interested in “set top boxes,” those devices that sit near the television and allow a person to receive pay TV channels. He began pushing a government mandate to require the box owners to surrender their property so that third party video set top box makers could obtain TV content and channel listings covered by existing agreements.
Immediately a number of industry and policy experts pointed out many problems with the plan, including that Wheeler’s plan would wrongly appropriate content for third parties to use as they see fit, including making money off of the property of others. Or as Michael Powell, CEO of NCTA stated, “This is government assistance to allow one set of big tech commercial interests to get access to the intellectual property that belongs to others.”
The 120-year-old U.S. Copyright Office agreed, quite forcefully. As the agency said in a recent letter to Congress, “[a]s currently proposed, the rule could interfere with copyright owners’ rights to license their works as provided by copyright law." Perhaps even more pointedly, “it seems critical that any revised proposal respect the authority of creators to manage the exploitation of their copyrighted works through private licensing arrangements, because regulatory actions that undermine such arrangements would be inconsistent with the rights granted under the Copyright Act, and, to some degree, as discussed below, the authority of Congress to decide whether and when limitations on these rights should apply."
The mission of the Copyright Office is to administer U.S. copyright laws and sustain an effective national copyright system to promote creativity. By comparison, the FCC “regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories.”
And yet the FCC proposes stripping content of its legally guaranteed protections. Content laundering rather than money laundering.
Given that the FCC scheme has been judged by the government’s copyright expert as violating copyright protections, imposing on the jurisdiction of the Copyright Office and also the purview of Congress, one would think that the FCC would immediately step aside, honoring the expertise of its fellow government agency and end its disruptive quest. But that is not the case.
Chairman Wheeler has indicated that, at best, he will come back with a new plan so that he can get what he wants. But the fundamentals of what he is attempting to do are highly troubling. In the end, the FCC is looking for a way to require that content be made available to third party set top box makers who are not part of any contract for its use.
This government intrusion into copyright protections and the freedom of contact is astonishing. But what is worse is the continuing arrogance of the FCC, and the chairman of that agency, ignoring the input of an expert agency like his own. This is regulatory hubris, while what the country needs is a great deal more regulatory humility.
September 1, 2016