Even before the Federal Communications Commission members officially weighed in on the agency's video-competition report Tuesday, groups were already praising the commissioners who had not signed off on the conclusion, leaked by chairman Kevin Martin, that cable had reached a market-power threshold that could trigger new cable regulation.
House Judiciary Committee Chairman John Conyers was happy, with a caveat. "Late last week, I conveyed to the FCC my concerns about a host of procedural irregularities at the Commission. In particular, I expressed concern that decision-making was not transparent, that the public comment process was not being sufficiently observed, and that the repeated expressions by civil rights leaders about media ownership were being ignored. In particular, I expressed my concern that the FCC’s invocation of the 70-70 authority was not the result of the deliberative process of an independent agency entrusted by Congress to protect the diversity and vitality of our media.
While I have not received any answers to numerous questions that I posed, I am gratified that the Commission has decided to delay its decision so that the issue can be further studied.
"We were pleased to read reports that a majority of FCC commissioners refused to support the dubious conclusion that the cable industry has a 70% market share in its service area," American Cable Association president Matthew Polka said. "It's difficult to comprehend the public good that would come out of imposing additional rules on independent cable operators in smaller markets and rural areas that compete vigorously against two national satellite-TV providers with significant market share in these areas."
Martin has proposed seeking more information from cable operators before deciding whether cable has indeed met that so-called 70/70 threshold, but Polka wasn't keen on that option either.
"The ACA is troubled by recent news reports that the commission may require cable operators to provide more data to the FCC, particularly if such info must be provided by cable systems with a limited subscriber base that are currently exempt from these burdensome reporting requirements,” he said. “Forcing small operators to report such data is not an alternative approach that the ACA supports."
Hilary Shelton, Washington director of the National Association for the Advancement of Colored People, praised what he said was commissioner Jonathan Adelstein's "opposition to the use by the FCC of the so-called 70-70 authority to promulgate sweeping new regulations on the cable industry that would hurt diversity in television programming."
Adelstein had asked for some outside help from a Wall Street analyst to gauge how accurate the FCC's figures were, and his was thought to be the vote Martin was trying to woo by modifying the report with a call for more information.
"By standing up to the misuse of the 70-70 authority and the anti-diversity agenda emanating from the FCC," Shelton said, "commissioner Jonathan Adelstein again showed why he is a hero in the civil-rights community."
The Hispanic Technology and Telecommunications Partnership also praised Adelstein for not signing off on the 70/70 finding. "HTTP applauds the leadership of Commissioner Adelstein and the FCC Commissioners who joined him to ensure that the unfounded proposal to apply regulatory oversight to the cable industry was rejected by the FCC," said HTTP Chair Manuel Mirabal.
It wasn't clear at press time whether Adelstein would be able to sign off on a modified report with the mandate for more information but no conclusion that cable had met that threshold, but the support from Shelton and others gave the commissioner some support for such a vote.
Adelstein’s office had not returned a call at press time for comment on whether he has indeed come out against using the 70/70 test to regulate cable -- a test advocated by Adelstein’s allies in the anti-consolidation community.