What is a “Regulatory Backstop?”

[Commentary] A fun aspect of this Federal Communications Commission’s modus operandi of announcing new rules and rule changes by op-ed and “fact-sheet” is all the hours one can spend speculating on what the upcoming rule will say. In my case, that mostly involves not having enough information to facilitate useful discussion and epic confusion about how to evaluate proposals that aren’t actually proposals. Recently, for example, I fretted about the potential issues raised by the “standard license” the fact sheet discussed. This week, my confusion regarding the standard license continues, spurred by the fact sheet’s claim that the FCC will be a “regulatory backstop.”

Let’s review the standard license paragraph: "Standard License: The proposed final rules require the development of a standard license governing the process for placing an app on a device or platform. A standard license will give device manufacturers the certainty required to bring innovative products to market. Programmers will have a seat at the table to ensure that content remains protected. The license will not affect the underlying contracts between programmers and pay-TV providers. The FCC will serve as a backstop to ensure that nothing in the standard license will harm the marketplace for competitive devices." What is the FCC backstopping and what does that mean? Perhaps the FCC intends to give itself veto power over the creation of the standard license that is to be designed by some group that remains undefined but for programmers who “will have a seat at the table.” Someday we’ll know what the FCC means to include in a standard license and the back of what, exactly the FCC intends to stop. When that happens some people will breathe a sigh of relief and others will protest loudly. We just don’t know which groups will be doing which yet.