In the golden age of television, the public airwaves were the heartbeat of our nation, a shared resource that connected communities and informed the public.
While over-the-air TV is still with us and is important, in the more recent past, the rise of cable TV focused the attention of policymakers on cable and other pay TV services, and how to ensure that viewers had access to a diversity of programming at a fair price.
Today, the landscape of media consumption is changing again. Even though millions of Americans still watch TV the “old-fashioned” way — whether over-the-air or via cable or satellite — millions of people now access news, information, and entertainment exclusively online. What was once called “cord-cutting” is now the norm, and not just with younger viewers.
Streaming has brought many benefits. Viewers can pick and choose which services to subscribe to instead of being forced to pay for an all-encompassing bundle. (Though, as many have pointed out, subscribing to every major streaming service might cost as much as a cable subscription. Fortunately, no one has to!) Viewers can also subscribe to a service for a short time and then unsubscribe, instead of being locked into year-long commitments. What video services call “churn,” consumers see as freedom and choice. And while it’s not perfect, the experience of watching TV via smart TVs and smart devices is a marked improvement on the cable set-top box.
At the same time, the online streaming video market is in flux. The recent WGA and SAG/AFTRA strikes underscore the evolving dynamics between creators and platforms. Live sports, once traditional TV’s strongest holdout, are moving online, and Regional Sports Networks, once a mainstay of cable’s dominance, are struggling. The recent Charter/Disney standoff resulted in Charter being able to bundle Disney’s online offerings with its cable package while dropping some of Disney’s less-popular linear channels, highlighting the changing dynamics of this market. In recent years, there has been a boom in new streaming services, though many of them may have an uncertain economic future. Services of all kinds are raising prices, adding more ads, and are increasingly offered in bundles.
The transition from traditional broadcasting to streaming is more than just a technological shift — it’s a cultural one. It’s imperative to ensure that core public interest values of diversity, accessibility, and localism are not lost in the digital shuffle, and that values like privacy that are even more salient in the streaming context, are elevated.
The airwaves are a public trust — a shared resource owned by the people and licensed to private broadcasters. Broadcasters, given an exclusive right to use limited airwaves, must serve the public interest, and their local communities.
But public interest concerns have never been limited to over-the-air broadcasting, even if they are particularly pronounced in that context. Other media such as cable TV must also satisfy public interest needs. Cable systems must have affordable service options; must make channels available for political, education, and nonprofit uses; and must have accessibility requirements like offering closed captioning. Additionally, cable systems are required to carry broadcast stations, ensuring that the unique public interest values that broadcasters fulfill were carried forward, even though most viewers did not tune in to them over the air. Finally, local communities, where cable systems construct physical infrastructure and use public rights-of-way, have often put service and quality requirements on cable systems. For instance, franchising rules prevent cable systems from serving only the most dense, high-income, and profitable areas, in favor of a kind of universal service obligation.
As we transition from the age of broadcast and cable to the streaming era, it is essential to ensure that public interest values continue to be carried forward, as they were before.
Some of the most important public interest values that have enduring relevance, and which Americans rightly look to dominant video providers to fulfill, are diversity, accessibility, and localism. Further, while viewer privacy has long been a concern, it is of much increased relevance in the streaming market, given the increased opportunities for data collection.
At its core, diversity is about representation and inclusion. A media landscape that prioritizes diversity ensures that marginalized voices, often left on the fringes of mainstream narratives, are brought to the forefront. We must ensure that the streaming market serves the needs of all Americans.
Antitrust and other competition law are essential to promoting diversity. In media as in other markets, competition policy ensures that consumers get the best products at the best prices. A competitive media marketplace allows consumers to choose programming that best suits their needs, and is more likely to produce content of relevance to all viewers, not just the majority.
Competition in media is also about protecting democratic values. It’s about preventing too few voices from having too much power, and ensuring that people have access to the information they need to make the best decisions, whether as viewers, voters, consumers, or members of their community. Encouraging competition ensures a diversity of perspectives, is crucial for preserving accountability, and prevents corporate monopolies from controlling public discourse.
Accessibility is a two-fold issue. First, it is about ensuring that programming is available to persons with disabilities. Online video providers already are subject to requirements of this kind under the 21st Century Communications and Video Accessibility Act and the Americans With Disabilities Act. We need new laws like Senator Markey and Rep. Eshoo’s Communications, Video, and Technology Accessibility Act to improve accessibility online. Second, we need to ensure that access to local news, emergency information, and other programming is available to low-income households, which requires attention to broadband access as well as video content regardless of the format.
Localism brings forward the stories, concerns, and events of individual communities. In times of crisis, local media becomes a lifeline, providing real-time updates and vital information. But local media also helps people know their own communities better, and can shine a light on local government and civic information. The geographic nature of broadcasting has always gone hand-in-hand with the goals of localism, and ensuring those goals don’t get left behind in a national online media environment will be a challenge, but a worthwhile one. Local communities, whether smaller towns and cities, or rural areas, need content that addresses their local concerns and needs — an issue that gets far too little attention with the rise of nationwide streaming services and a global media market. Alongside accessibility, ensuring that local news and information can reach the people who need it is a matter of public safety, building thriving communities, and an issue of basic fairness.
Localism also plays a pivotal role in ensuring public safety. Local media ensures that residents receive timely and accurate information that might affect them directly. This becomes critically important during emergencies. Imagine a severe weather event, such as a tornado or flood. National or global streaming services may not prioritize or cover such events in real-time, but for residents in the affected areas, immediate updates are not just valuable, they’re life-saving. Local media outlets have the advantage of being on the ground, allowing them to relay vital information, from evacuation routes to emergency shelter locations. Local government also heavily relies on local media to keep residents informed, be it about a water contamination issue, road closures, accidents, public transit disruptions, criminal activity, power outages, or public health crises.
Privacy considerations have been part of media policy for decades. In 1988, Congress passed the Video Privacy Protection Act, recognizing that what people choose to watch is highly personal and private, and deserves legal protection. Existing media, such as cable TV operators, are subject to specific privacy rules that reflect this. Streaming services inherently have access to granular, extremely personal information about what viewers watch and their overall preferences, as well as other demographic and geographic information. But they are not the only players who can — or who try to — access this highly sensitive data. For example, many smart TVs attempt to figure out what viewers are watching, even if they are using external playback devices. A user might choose to use a device like the Apple TV that has better data practices than the built-in software on a smart TV, only for the TV itself to track viewing behavior and upload it to the TV’s manufacturer for marketing purposes. A strong federal privacy law, and perhaps more, are needed to ensure that viewer privacy is protected online, including from unexpected and unwanted tracking.
The streaming marketplace is in flux, and just as it is important to bring public interest values forward into a new era, it’s also important not to mechanically impose old requirements on new media where they don’t make sense. Streaming works differently than old media, operates under different business models, and is marketed to viewers in a different way than broadcast, cable, and satellite television were. However, it does mean that the same public interest values that have animated media policy since the beginning of broadcasting are still important to preserve, even if their implementation is different in a new context. Some of these values can be achieved through market competition; a more dynamic video marketplace forces providers to work hard to earn subscribers, unlike in the monopoly cable days. In other cases, the application of current law (such as antitrust and consumer protection), mindful of the unique role of video programming in our culture, can help achieve public interest objections. And in other cases, new legal guidelines and regulations may be needed.
The values are more important than the specific way they are realized. But an important place to start the discussion is a recognition that while technology and business models might change, the need for diverse, accessible, locally-relevant, and private programming does not.
