The Impact of Next Generation Television on Consumers and the First Amendment

Consumers have access to an ever increasing inventory of video content choices as a result of technological innovations, more readily available broadband, new business plans, inexpensive high capacity storage and the Internet’s ability to serve as a single medium for a variety of previously standalone services delivered via different channels. They increasingly have little tolerance for “appointment television” that limits access to a particular time, channel and device. Access to video content is becoming a matter of using one of several software-configured interfaces capable of delivering live and recorded content anytime, anywhere, to any device and via many different transmission and presentation formats. Technological and marketplace convergence eliminate the viability of judicial and regulatory models that apply varying degrees of First Amendment protection as a function of the medium delivering the content. With the Internet serving as a single conduit for a variety of information, communications and entertainment (“ICE”), ventures can offer a bundle of services that span two or more regulatory classifications, e.g., the ability of wireless handsets to make telephone calls, to receive video programming and to access the Internet. This paper will examine the ongoing migration from channels to software-configured platforms for accessing video content with an eye toward assessing the impact on consumers and the First Amendment. The paper identifies the need for significant amendment of the Communications Act of 1934 to provide a light-handed and limited, but explicit statutory basis for the FCC to resolve predictable disputes between stakeholders and to remedy anticompetitive practices