Marketplace Resolutions of Programming Availability and Pricing

The long history of carriage disputes between MSOs and programmers demonstrates that such disputes can be sorted out in the marketplace. The "I Want My MTV" campaign from the 1980s was part of an attempt by MTV to get its loyal viewers to call cable systems and demand that they carry MTV at a time when MTV was raising its rates.

In recent years, several carriage disputes have resulted in channels being dropped by cable and DBS systems. Sports fans are aware of some of these disputes. In 2003, Fox Sports Net and Time Warner Cable failed to reach a carriage agreement for Fox Sports Net North (Minnesota sports) and the Sunshine Network (Florida), so that both were not carried by Time Warner cable systems for over two months until the companies agreed to a new contract.[43] More recently in Michigan, the Big Ten Network was launched before the 2007 college football season, but the Big Ten conference and Comcast failed to reach an agreement until nearly a year after the channel was launched, giving the DBS services a significant advantage over Comcast during the 2007 fall football season.[44]

Similarly, in 2006 EchoStar, the parent of Dish Network, refused to carry the Lifetime channel in a carriage dispute. The channel responded with a "Take Back Your Lifetime" campaign that urged viewers to drop Dish in favor of another programming provider. A year earlier, EchoStar had a similar dispute with Viacom Inc., the parent of CBS, MTV, and Nickelodeon, and dropped carriage of the Viacom cable channels and 15 local CBS stations for two days until a new carriage agreement was reached on March 12, 2005.[45]

A long dispute between the National Football League and Time Warner Cable led to the NFL running ads in other media telling football fans to call the cable system and demand it carry the NFL Network. Time Warner responded with its own ads explaining that the league's $137 million price tag would force the company to raise prices for subscribers.[46]

Recently the FCC has discussed intervening in cable carriage disputes, but the discussions were contentious, and no majority has emerged for moving forward with any plans.[47] The common theme from all of the past carriage disputes is that if viewers want the channels that are the subject of the dispute, the negotiations between delivery services and programmers are resolved, and the channels are made available to viewers. It is unlikely that state or federal government intervention will have the intended effect, and more likely will result in each side investing more in lobbying efforts, rather than in efforts to resolve disputes.

What is most striking about the contentious carriage disputes between programmers and cable or DBS systems is how rarely they occur, and how they always are resolved without government intervention. Mandating PEG channel carriage is another example of a government intervening in a market system where it is unlikely that that government can do a better job than private parties in resolving essential private disputes. Moreover, future carriage disputes are likely to be exacerbated if resources are diverted to PEG channels, rather than the sometimes costly channels that large numbers of customers demand.