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Hastings Communications and Entertainment Law Journal

Abstract

The 1992 Cable Act completely overhauls the legal rules governing the television marketplace, and its substantive impact will be felt for many years. The Act's complex, interrelated, and often intentionally vague provisions revise the rules pertaining to cable television, broadcast television, new television technologies such as DBS and wireless cable, the regulatory roles of the FCC and local franchise authorities, and the rates cable customers will pay. Its enactment marks the beginning of a new regulatory era whose legal features will be further defined by several FCC rulemakings, pending lawsuits, and additional legislation in the 103d Congress. The article traces the history and analyzes the three most important and controversial parts of the Act: (1) access to cable programming for competitors; (2) retransmission of commercial broadcast signals; and (3) regulation of cable rates. The article also identifies several critical issues that Congress left to be resolved by the FCC in each of these three parts of the statute and suggests solutions to the dilemmas before the FCC in the extensive rulemakings required by the Act. The article concludes that despite its imperfections the Act is an important, timely, and in many respects impressive effort by Congress to grapple with serious problems in the video marketplace. It predicts that the fair access provisions will ultimately yield a market that is more hospitable to new entrants who can offer competition to the local cable franchise. It also predicts that the 1992 Cable Act will not be the last word on the decades-old debate surrounding Must Carry, Retransmission Consent, and the Cable Compulsory License. All the interested industries are likely to continue to pursue the issues both in the courts and in Congress. Finally, while the rate regulations spawned by the new Act might in time accomplish the objective of moderating cable pricing practices, it is virtually impossible to forecast their impact, especially in light of the breakneck pace of technological innovations in the marketplace. The FCC will be challenged to breathe flexibility and life into these regulations in order to keep up with the rapid development underway in the market.

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