Curiouser and Curiouser


The FCC, and its chairman Kevin Martin, have had a period of Alice in Wonderland days recently, with people opposing what they might otherwise support, a morning meeting that started at night, and numbers that weren't the numbers after all.

Last Tuesday came the latest chapter in this topsy-turvy plotline, parts of which will continue to play out in the days and weeks to follow.

To put it mildly, Kevin Martin didn't have a very good week. Martin had wanted to assert on that day that the so-called and heretofore hardly known “70/70” rule had been triggered. That meant 70% of the nation had access to cable, and 70% of those subscribed to it. Problem was, only one out of four key sources of subscriber data concluded that the benchmark had been met.

But Martin liked the looks of that data. If that benchmark had been met, the FCC would be statutorily empowered to exert, or at least assert, more control over the cable business. That would mean Martin could continue to fight for a la carte cable programming from a stronger position. But by last Monday night, he realized he couldn't get the rest of the commission to buy into his numbers. He would have also liked to have inserted arbiters into stalled programming negotiations between cable operators and programmers, but that item disappeared from the agenda like the Cheshire cat, only in this case what remained would have been the chairman's frown.

And so on Tuesday, at a 9:30 a.m. meeting that actually convened about 12 hours later, Martin had to essentially concede the day on 70/70, though he lives to fight another. In the process, he angered Democrats who typically would favor more regulation of cable, and did not sway increasingly critical Republicans on the commission, who are not normally in favor of more regulation anyway.

In the end, he got the commission to agree to get cable operators to report their subscription figures to the commission. At that point, whenever that point will be but certainly months down the road, Martin can take up the fight again, or drop it, though coming up with figures everyone can agree to will be a tall order.

The commission was able to agree to require cable operators to lower the price they charge to programmers for leased channels—not a great victory and only with the aid of the two commission Democrats. Cable systems average fewer than one leased access channel apiece, and audiences—and therefore advertisers—do not materialize overnight, while, of course, the rent still comes due.

More quietly, Martin also dropped from the agenda a proposal that would encourage broadcasters to lease digital spectrum to minorities, though he will try again in December. That seems like a good way to get minorities into the business, but it sounded to some minorities, including the Rev. Jesse Jackson, like a techno-version of sharecropping.

There was also no discussion of a proposal that would mandate arbitration to settle cable program carriage disputes, or what might be called The NFL Network Cleat-in-the-Door Proposal, since it's that network that is among the most vocal in asserting that the Comcasts and Time Warners of the world are not negotiating in good faith for carriage of its channel.

But while Martin speaks softly, and may have to tread more lightly around his fractious FCC, he continues to carry a big stick. Unable to get at cable through the 70/70 rule, the chairman put on the tentative agenda for the December meeting a proposal to cap cable's reach at 30% of multichannel video subscribers. He's been trying to do that for six months and could well have a majority, but probably only with the help of two Democratic votes.

Curiouser and curiouser.