Martin Proposes Seeking More Data on 70/70 Test

Warren Communications: Not All Cable Operators Responded to Survey

By John Eggerton -- Broadcasting & Cable, 11/27/2007 1:27:00 PM

Federal Communications Commission chairman Kevin Martin proposed modifying compelling the cable industry to quickly come up with data to help the FCC determine whether or not it needs to be more heavily regulated. And he said it looks like he has a majority to support that. He apparently didn't have the votes to support his initial suggestion that cable's market power had grown sufiiciently to trigger possible new rules.

That effort would put on hold the FCC's conclusion -- telegraphed by Martin to The New York Times -- that cable had met the so-called 70/70 market-concentration test that could justify and buttress a raft of new cable regulation. That finding comes in an annual report on competition the FCC makes to Congress.

That news came in an announcement Tuesday from Martin to reporters waiting for the start of the delayed FCC meeting, at which the commission planned to vote on the report. The meeting has been delayed for at least a few more hours, an FCC spokesman said at a little after noon.

Martin said a majority of commissioners had expressed interest in seeking additional data from the cable industry in a "short time frame." He had been getting push back from his own Republican commissioners on that 70/70 conclusion, which had been based on data from Warren Communications that found that cable subscribership had passed the 70% figure that could trigger regulation.

Martin said the FCC planned to still use the Warren data, but it would supplement it with other industry data if the proposal were adopted. Warren has said that its data are good as far as they go but incomplete because some operators did not respond to its survey.

Martin said he had proposed asking for additional cable information Monday, but a majority of commissioners didn't seem interested. "It appears like they might be today," he said, adding, "As soon as we work that out, will decide whether we are going to go forward with that issue or not."

He continued, "Warren's data, I think, are the most reliable. It is the only industry source that distinguishes between systems that have 36 channels and those that don't, as the law requires. Concerns have been raised by several of the commissioners [including Robert McDowell, Deborah Taylor Tate and Jonathan Adelstein]. So one of the approaches that I think would be a reasonable step to take would be to say, 'OK, let's have the industry file the data so that we can determine whether we've reached it or not.’"

The 70/70 test is based only on systems with at least 36 channels.

It is unclear which of the other half-dozen media agenda items will remain on the schedule for Tuesday's meeting, but one already pulled would have allowed broadcasters to lease digital-TV spectrum to minorities and others to essentially franchise a TV station without the cost of building or buying them.

"The commissioners wanted some more time to think about the minority proposals," Martin said, although Democrats, for one, are already on the record saying it amounts to media "sharecropping."

Martin said the item requiring enhanced disclosure of TV stations' public-interest efforts was ready to go, but he wasn't sure where the leased-access item would end up. He is proposing to dramatically lower the price for leasing cable channels.