Order Code RS21775 Updated April 5, 2004 CRS Report for Congress Received through the CRS Web Cable Television: Background and Overview of Rates and Other Issues for Congress Justin Murray Information Research Specialist Information Research Division Summary This report presents information on the history of federal regulation of the cable television industry and background information on cable rates and other cable industry issues. Cable service is received by 70.5 million television homes, or approximately 74.9 % of all pay television subscribers. The Telecommunications Act of 1996, 110 Stat. 56, P.L. 104-104, eliminated most cable rate regulation beyond the basic tier of services as of March 31, 1999. Some small cable operators were freed from regulation upon the enactment of the law, but in most cases, rates for a basic tier of services continue to be regulated. The Telecommunications Act also opened up new areas of competition between telephone companies and cable companies. This report will be updated as legislation or news events warrant. History of Cable Rate Regulation The Cable Communications Policy Act of 1984, 98 Stat. 2779, P.L. 98-549, established for the first time a national regulatory policy concerning cable television communications. The act established a comprehensive cable regulatory scheme delineating regulatory authority among the federal, state, and local levels. Increasing cable service rates and customer service complaints, however, prompted Congress to revisit the law as local authorities and consumer groups lobbied for new legislation. On October 5, 1992, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, 106 Stat. 1460, P.L. 102-385. This law addressed such issues as cable rates, must carry, retransmission consent, program access, franchising authority, service standards, and more. Promulgation of regulations required by the 1992 act was done by the Federal Communications Commission (FCC). The regulations were completed in stages, according to dates set by the act. The FCC’s first set of cable rate rules implementing this act went into effect September 1, 1993. The FCC expected, on average, a 10% reduction in overall cable bills. However, “on average” did not mean all rates decreased 10%, or even that all rates Congressional Research Service ˜ The Library of Congress CRS-2 decreased. One reason was that all cable systems did not charge “unreasonable” rates. Some rates increased, and Congress and the FCC decided to address the issue of rate hikes. After conducting a review of cable rates following issuance of its 1993 rate regulations, the FCC decided to revisit this issue. On March 30, 1994, the FCC issued rules for a second round of cable rate regulations. These new rules were intended to cut cable rates, on average, an additional 7%. No predictions were made estimating the number of cable subscribers who would see further reductions in their cable bills. The new rules took effect on May 15, 1994. The Telecommunications Act of 1996, 110 Stat. 115, P.L. 104-104, was passed by the 104th Congress in February 1996. This act eliminated most cable television rate regulations beyond the basic tier as of March 31, 1999. In most cases, rates for a basic tier of services (defined as the tier that includes “over the air” broadcast stations) continues to be regulated either by local franchise authorities or state authorities. Most small cable operators (those serving less than 1% of all cable subscribers and having no affiliation with any company whose gross annual revenues exceed $250 million) were freed from rate regulation immediately. The FCC continues to monitor cable rate activity and issues an annual report on cable industry prices and one on competition in video markets. Current Cable Rate Issues According to the 2002 FCC Annual Report on Cable Industry Prices1 released in July 2003, the overall average monthly rate for cable programing services and equipment increased by 8.2% from $37.06 to $40.11 over the 12-month period ending July 1, 2002. Industry statistics on cable rates vary slightly from FCC statistics (see below), but cable companies stated that sharply rising costs of obtaining sports and entertainment programming coupled with system upgrades caused them to increase rates for subscribers.2 Ongoing consumer concerns about rate increases for subscription television prompted Congress to mandate a General Accounting Office (GAO) study of cable rates released in October 2003. In its report, Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry,3 GAO sought to examine the impact of competition on cable rates, assess the reliability of information contained in the annual FCC report on cable industry prices, and examine the causes of 1 U.S. Federal Communications Commission, 2002 Annual Report on Cable Industry Prices, July 8, 2003, FCC 03-136. The 2002 report and previous years’ reports are available at [http://www.fcc.gov/mb/csrptpg.html]. 2 The FCC uses surveys of average monthly rates for cable programming services at the basic service tier (BST) and the cable program service tier (CPST), also known as “expanded basic,” as noted in the 2002 FCC Annual Report on Cable Industry Prices . 3 U.S. General Accounting Office, Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry, Oct. 10, 2003, GAO-04-8. At [http://www.gao.gov], click on GAO Reports, on Find GAO Reports, on GAO reports, then type GAO-04-8. CRS-3 recent cable rate increases. In surveys of the industry conducted by GAO for its report, GAO concluded that the annual FCC report did not appear to provide a reliable source of information on the cost factors underlying rate increases or on the effects of competition, most notably costs associated with upgrading equipment and services. GAO recommended that FCC take steps to improve the reliability of data in its report. GAO also found that several key factors, including a 34% average increase in programing costs incurred by cable operators over the last three years — specifically a 59% average increase in sports programing costs — and cost increases from system upgrades have put upward pressure on operators to raise rates to their customers. The GAO report also discussed the option of converting cable system pricing to a la carte (per channel) pricing instead of the current tiered system. It noted that despite the customer benefit of greater choice, a la carte pricing could impose additional equipment costs on the customer and alter the current economics of the industry, especially how cable providers generate advertising revenues. Annual Cable Rates Data Table 1. Cable Rates (Average monthly “expanded basic” rate) 2003 2002 2001 2000 1999 1998 1997 1996 $36.59 $34.52 $31.58 $30.37 $28.92 $27.81 $26.48 $24.41 1995 1994 1993 1992 1991 1990 1989 $23.07 $21.62 $19.39 $19.08 $18.10 $16.78 $15.21 Source: National Cable & Telecommunications Association.4 The Current Cable Market According to the FCC Tenth Annual Report on Competition in Video Markets, released in January 2004,5 approximately 70.5 million homes in the United States, or 74.9% of all Multichannel Video Program Distributor (MVPD) television homes, 4 Note: NCTA [http://www.ncta.com] does not set the content of tiers or channel packages of its members. Basic service tiers (BSTs) are defined as “... basic program services distributed by a cable system for a basic monthly fee. Basic monthly services include one or more local broadcast stations, non-pay networks and local origination programming.” Service tiers beyond the basic tier are required by the FCC to include basic tier services and generally include a package of pay channels as negotiated in the local franchise agreement between the local franchise authority and the cable system provider. Additional price increments beyond basic offerings are considered a tier. Pay channels beyond basic tier services are no longer regulated by the FCC, as of Mar. 31, 1999. 5 The FCC Tenth Annual Report on Competition in Video Markets as well as previous year’s reports and current and previous years of the aforementioned FCC reports on cable industry prices are available at [http://www.fcc.gov/mb/csrptpg.html]. CRS-4 subscribed to cable television as of June 2003. As defined by the FCC, an MVPD distributor is “an entity engaged in the business of making available for purchase, by subscribers or customers, multiple channels of video programming.”6 Such entities include cable operators, direct broadcast satellite (DBS) services, and — in much smaller numbers — subscribers to MMDS (large dish satellite) and OVS (open video systems). Subscriptions to DBS in recent years have increased rapidly. Between June 2002 and June 2003, DBS subscribers grew by 2.2 million homes to approximately 20.4 million homes, or 21.6% of all MVPD subscribers. MVPD (cable and noncable) subscribers total approximately 94.1 million homes.7 As a result of the Telecommunications Act of 1996, telephone companies can provide video services in direct competition with the local cable television company and in certain cases may merge with the local cable company. Cable television companies are also able to offer local phone service and broadband Internet services (including such services as “Voice Over Internet protocol” [VoIP]). While individual consumers will presumably have more choices as a result of competition in the developing communications market, particularly from satellite services such as DBS, forecasts of what will happen in this new and complex environment are conflicting and uncertain. Recent actions, including the merger of Comcast Corporation with AT&T’s cable unit in late 2002, and the acquisition of the DirecTV DBS operator by the News Corporation in December 20038 reflect the trend toward the consolidation of larger MVPD providers. Top Cable and DBS Systems Table 2. Top 10 Multiple System Operators (by number of subscribers) 1. 2. 3. 4. Comcast/AT&T (21.4 million) DirecTV (11.9 million) Time Warner Cable (9.4 million) Dish Network (Echostar Comm. Corp.) (8.5 million) 5. Charter (6.4 million) 6. Cox (6.3 million) 7. Adelphia (5.5 million) 8. Cablevision (3.0 million) 9. Advance/Newhouse (2.1 million) 10. Mediacom (1.6 million) Source: National Cable & Telecommunications Association [http://www.ncta.com] and Broadcasting & Cable, “Top 15 MSOs,” November 10, 2003, p. 32. 6 See 47 CFR 76.1000(e) for definition of MVPDs. 7 Nielsen Research data on total television households estimates that there are 108.4 million television households in the United States. [http://www.nielsenmedia.com/newsreleases/2003/0304_natl_UE.htm] 8 U.S. Federal Communications Commission, “Subject to Conditions, Commission Approves Transaction Between General Motors Corporation, Hughes Electronics Corporation, and the News Corporation Limited,” December 19, 2003. FCC News Release, FCC 03-328. [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-328A1.pdf] CRS-5 Program Access Rules Many providers of cable television programming are owned by or affiliated with cable television operators. Concerns that such programmers may only provide their programming to their corporate affiliates prompted Congress to enact a provision in the Cable Act of 1992 addressing “program access” concerns. Program access provisions prevent the use of exclusive contracts between cable operators and their affiliated programmers for satellite delivered programing. The FCC was instructed in the statute to reexamine the continuing need for the prohibition after it had been in effect for 10 years. The prohibition was set to expire on October 5, 2002, but the FCC issued a Report and Order on June 13, 2002, extending for five years (until 2007) the statutory prohibition. The FCC found that the prohibition continues to be necessary to preserve and protect competition and diversity in the distribution of video programming. 9 Broadband Cable Modem Service Broadband or high-speed Internet services can be offered through a series of technologies including cable, digital subscriber lines (DSL) provided by telephone carriers, satellite television, fixed wireless, and others. Cable television companies offer broadband services via a cable modem. Classifying broadband cable service as an “information service,” a “telecommunications service,” or as a combination of the two has important regulatory implications. Generally, classification as an information service would subject cable broadband services to minimal federal regulation and no requirement that they provide open access to their systems to competing Internet Service Providers (ISPs). Classification as a telecommunications service could subject cable broadband services to common carrier regulation and could require provision of open access to competing ISPs. Recently, the courts and the FCC have come to different conclusions regarding classification of these services. In a ruling on March 14, 2002, the FCC ruled that cable modem service is properly classified as an interstate information service. The ruling further determined that cable modem service is not a “cable service” and that cable modem service does not contain a separate “telecommunications service” and is not subject to common carrier regulation (the rules which govern telephone providers).10 However, in an opinion filed on October 6, 2003, the United States Court of Appeals for the Ninth Circuit came to a different conclusion regarding the classification of cable modem services. The court ruled in Brand X Internet Service v. FCC that cable modem services are legally in part a telecommunications service, which could lead to the 9 A copy of the ruling is available on the FCC website at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-176A1.pdf]. 10 A news release summarizing the FCC decision is available on the FCC website at [http://ftp.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html]. CRS-6 requirement that cable operators open their lines to competing Internet service providers.11 This decision vacated in part the FCC March 2002 declaratory order which classified cable modem service as exclusively an information service free from the rules of access governing telecommunications services. The FCC appealed the Ninth Circuit’s decision, but the court on March 31, 2004, denied the FCC’s petition for a full court review. It is unclear if the FCC will appeal the Ninth Circuit’s decision to the United States Supreme Court. 12 Select Additional Resources on the Cable Television Industry U.S. Federal Communications Commission. “FCC Role in Cable Rate Regulation Ends.” Consumer Alert. March 1999. At [http://www.fcc.gov/Bureaus/Miscellaneous/Factsheets /cblrate.html], visited March 17, 2004. This two-page notice details the end of federal regulation of expanded basic cable rates as of March 31, 1999, which was mandated by the Telecommunications Act of 1996, P.L. 104-104. ——. “General Information on Cable TV and Its Regulation.” Fact Sheet. June 2000. At [http://www.fcc.gov/mb/facts/csgen.html], visited March 17, 2004. This extensive fact sheet presents background information on the history and evolution of the cable industry in the United States, including the evolution of parts of the Communications Act of 1934, which affect cable television, discussion of issues such as must-carry regulations, and information on the regulation of cable television by state and local authorities, including local franchise authority agreements and customer service guidelines. Additional fact sheets on specific cable TV topics are available on the FCC website at [http://www.fcc.gov/mb/facts/#cable]. For Members of Congress only, an annotated listing of federal, state, and nongovernmental Internet resources is available on the CRS website, Cable Television External Links at [http://www.crs.gov/reference/topics/telecommunications/cable.shtml]. Selected CRS Products on Related Issues CRS Issue Brief IB10045. Broadband Internet Access: Background and Issues. CRS Report RL31260. Digital Television: An Overview. CRS Report RS21768. Satellite Television: Reauthorization of the Satellite Home Viewer Improvement Act (SHVIA) and Related Issues. 11 See Brand X Internet Service v. FCC, 345 F. 3d 1120 (2003). The decision can be found at the FindLaw website at [http://caselaw.lp.findlaw.com/data2/circs/9th/0270518p.pdf]. 12 More detailed discussion on broadband Internet service is available in CRS Issue Brief IB10045, Broadband Internet Access:Background and Issues.