commentary by Steve Effros Quid Pro Quo The political season has started in earnest for the cable industry again. The debates over “indecency,” a la carte and multichannel must carry have moved from the FCC to Capitol Hill, and as usual, it’s gotten silly very quickly. I’ll hold the indecency debate for another time. I will note, however, that one key senator, as was well reported yesterday, said that he really didn’t care about the potential Constitutional infirmities of applying the broadcast indecency rules to cable, satellite, and presumably the Internet as well – he would just let the Supreme Court sort it out. Maybe he should re-read his oath of office. The thing that really pushed me over the edge in the last 24 hours is listening to talk of a "quid pro quo" for multichannel must carry on Capitol Hill. The same senator suggested that he was fine with multichannel must carry so long as the broadcasters produced the kinds of programming he wanted (shows about the Boy Scouts and Girl Scouts!). This, I should note, is called "content regulation." A press report mentioned that NAB head Eddie Fritts was thinking of negotiating a "deal" to exchange multichannel must carry (and the imposition of broadcast indecency rules on cable) as a "quid pro quo" for a "date certain" for broadcasters to return the analog spectrum. At a think-tank forum yesterday on “must carry,” it was not only suggested that the “date certain” idea was a good “quid pro quo,” but some thought additional “public interest” broadcast obligations should be part of the package. (I don’t know what other Scout Channels they want, I’m sure they’ll let us know!) "Quid Pro Quo" in Latin means "something for something". The general dictionary definition is an exchange of equal value. Do you notice anything strange about this political "quid pro quo" they are talking about? The politicians get something they say they want, the broadcasters get something they want, as do the "public interest folks, – and all give away cable’s private property to get it! That’s not a "quid pro quo," that’s a combination in anticipation of a mugging! Now I know the senator says he does not worry about First Amendment issues… but what about the Fifth Amendment? There is this little clause that says government cannot take private property without just compensation. I haven’t seen or heard anyone say what new compensation cable will get for these new proposed takings. It’s going to be a very hard issue for the government to avoid, since it’s clear Congress is counting on billions of dollars of revenue by getting back and auctioning the analog spectrum. The broadcasters, as was explained to me by a religious broadcasting representative yesterday, plan to lease some of the additional "multicast" spectrum they get on cable systems. So both of these groups talking about a "quid pro quo" specifically plan to make money by expropriating cable’s bandwidth for their new purposes. Cable, meanwhile, gets nothing in return other than lost opportunity costs, and the uncompensated taking of private property. Have I missed something? Didn’t the "conservative" "reds" win the last election? Aren’t they supposed to support private enterprise over government taking? Personal responsibility over being a huge government nanny? Don’t they even consider defending the Constitution as part of their job? Here’s a true "quid pro quo" for you: multicast must carry in exchange for a total elimination of retransmission consent. More on that later.

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