Media Access Project Data Back Martin’s 70/70 Claim

Frequent Critic of Martin Sides with FCC Chairman on Cable Regulatory Threshold

By John Eggerton -- Broadcasting & Cable, 11/16/2007 4:47:00 PM

Media Access Project Friday provided Republican Federal Communications Commission members Robert McDowell and Deborah Taylor Tate with information supporting FCC chairman Kevin Martin's contention, based on data supplied to the FCC, that cable has met the 70/70 reregulatory threshold.

In essence, MAP, a frequent critic of Martin, was siding with the chairman, who confirmed in an article in The New York Times that the commission had reached that conclusion about the 70/70 rule.

The other two Republican commissioners had sought more information from Warren Communications about data it supplied to the FCC, which the commission used to conclude that more than 70% of those who could get cable were subscribing to it.

That is the second prong of a two-prong test, the first being homes that can get cable, which now stands at about 86%. Once both prongs are met, the FCC can impose regulations to encourage program diversity.

The cable industry has argued that the FCC numbers were off and that even if they weren't, the FCC's authority to reregulate under the test is limited.

In its letter to the two commissioners responding to their concerns about the "trustworthiness, truthfulness and viability" of the data, MAP said it was all of those things.

The 70/70 threshold was passed in 2005, the group argued, and that second figure now stands at 77%. Warren’s numbers actually underreported subscribers, while the cable industry -- which puts the second figure at about 60% and going down -- underreported penetration.

MAP also said adding telco subscribers to the cable figure would leave no doubt that the benchmark had been met. Cable would argue that this would be adding in a competitor's numbers in a finding of cable's market power. MAP makes the semantic argument that the cable industry itself has referred to telco video as "cable" systems.

Martin is said to want to vote out the Video Competition Report, including the 70/70 conclusion, at the commission's expected Nov. 27 meeting. If the 70/70 test were met, Martin could use it to justify a number of cable regulations, including changes to leased-access rates, cable-ownership caps and program unbundling. The FCC already has the authority to act on those, but Martin could use the finding to buttress his case for regulations.