FOR A LONG TIME NOW, pay television has been lurking just outside the main arena of entertainment and communications. It has never been able to break into serious competition with regular television, partly because of its own early economic problems and more recently because of restrictions placed on it by the Federal Communications Commision. But the United States Court of Appeals here set those restrictions aside last Friday and ruled that the FCC cannot regulate cable television to the same extent it regulates stations that use the airwaves. If that decision stands, pay television may be in your house sooner than you think.
What is involved is the kind of home television system that will be available in the country during the next two or three decades. The networks and existing stations want things to remain much as they are now. They would continue to provide most of the programing. Operators of cable systems would be able to try to sell you a product that provides better reception of existing channels and some additional programming, most of it local in origin. The proponents of pay cable systems, however, want to do much more than that. They want to be able to try to sell you a system that offers in addition, and at a higher fee, exclusive feature movies and sporting events without commercial interruption. The networks argue that if cable operations can do that, they will buy up the best movies and sporting events. This would remove those things from the existing 'free' stations and make themavailable only to those who live in areas where pay cablesystems exist and are willing to pay for them.
This argument has been going on since the days when pay television involved a regular broadcast signal and a special device attached to a home television set to permit viewing of its offerings. The FCC limited sharply the kinds of programs such stations could carry and the courts have upheld that limitation. When pay television switched to cable systems, the FCC attempted to apply the same kinds of limitations. Last week's decision distinguishes between the two delivery systems, partly on constitutional grounds, and appears to put quite narrow limits on the power of the FCC to regulate what goes out over cables.
This distinction may be a useful one, although it seems sure to cause a considerable stir among lawyers and television people. The court equates cable systems with newspapers in terms of the kind of regulations government can apply. It puts stations originating over-the-air signals in a different category. Such a distinction could provide the constitutional base on which to rest radio and television regulations dealing with program content. It would also free the programming of cable operators from FCC scrutiny.
Beyond this legal issue, however, is the policy question about the access of the public to television programming on a "free" or "pay" basis. Whether the court decision stands or not on appeal, Congress will undoubtedly be asked again to take a serious look at pay cable systems. It ought to do so. If the decision stands, framing any kind of limits on cable programming will be difficult.If it is reversed, deciding what kind of regulations are appropriate will be equally difficult, particularly in view of the amounts of money at stake. Matters of this magnitude need to be resolved by Congress, not the FCC, and this decision moves the whole subject in that direction.