FCC's Martin rebuffed on cable regs

At issue is whether key 70-70 threshold has been met

FCC chairman Kevin Martin's drive to push through tougher cable regulations encountered a bump in the road on Tuesday as he was forced to abandon his plan to change the way the agency measures the industry's market power.

Martin told reporters that the other commissioners balked at his attempt to get them to declare that cable TV is available to more than 70% of the nation's TV customers and that more than 70% of those that can buy cable actually pay for it. Under a 1984 law, the FCC gets new power to regulate the industry if the 70-70 test is triggered.

"Obviously the commissioners had great concerns about that," he told reporters early Tuesday before he had made a deal with the other commissioners.

Throughout the day, he and the other commissioners haggled over the language in a compromise plan. While the commission was scheduled to begin voting on the issue at 9:30 a.m. EST on Tuesday, it finally approved it unanimously just before 11 p.m.

Under the compromise ap-proved by the commission, cable operators will be forced to give the commission new information designed to allow the panel to decide whether the 70-70 threshold has been met.

"In the end, I think what's important, despite all the fighting back and forth about whether the 70% benchmark has been met or not, is that we're all going to move forward and just ask the companies for the data," he said. "We would have avoided all these fights if, probably, we'd just asked for the data to begin with."

Cable companies will have 60 days to comply with the commission's new demands.

"The cable industry may have already surpassed the 70-70 threshold," said commissioner Michael Copps. "This should not be viewed as an invitation to delay."

Commissioners Jonathan Adelstein and Robert McDowell accused Martin of attempting to jam his original plan down their throats. McDowell said that a critical statistical analysis was kept hidden from the commissioners.

"Today's report has taken an interesting journey in the past few weeks and in the past few hours," McDowell said.

Martin insisted that the evidence backed up his contention but said he was "pleased we have determined to avoid the debate in the future."

He said accusations that he suppressed data was false.

"Information wasn't suppressed," he said. "It wasn't. It wasn't asked for until yesterday (Monday)."

Martin said he been more than fair.

"I've bent over backwards to give more than the precedent allowed," he said.

The cable industry, which includes such providers as Comcast Corp. and Time Warner Cable, argues that its subscriber base is less than 65%.

If granted further authority by a triggering of the 70-70 rule, Martin could push through other proposals disliked by the cable industry, including a so-called a la carte service model that would allow subscribers to pick and choose channels they want rather than accepting bundled packages from cable companies.

In a letter sent last week, the House's GOP leader, Rep. John Boehner, R-Ohio, warned Martin in a letter that the FCC shouldn't expand its regulatory authority when there's ample competition. Twenty-three Republicans on the House Energy and Commerce Committee also told Martin that the commission shouldn't use the rule to impose new mandates on the cable industry.

The commissioners postponed a vote Tuesday on a proposal that, if approved, would have required broadcasters to lease excess channels to small businesses owned by women and minorities.

Martin, who said the commissioners needed more time discussing the issue, has championed the plan in past speeches to increase diversity in programming and media ownership. The excess channels would have been available following the nation's digital transition in early 2009.

But the cable industry is fearful the agency would force cable companies to carry those channels, which it strongly opposes.

Martin's policies also face a rough road in Congress as Senate Commerce Committee chairman Sen. Dan Inouye, D-Hawaii, scheduled a vote on the Media Ownership Act of 2007.

The bill, pushed by Sens. Byron Dorgan, D-N.D., and Trent Lott, R-Miss., would require 90 days of public comment on any proposed media-ownership rules. Martin wants to substantially ease the federal prohibition that generally prevents one company from owning a newspaper and TV station in one locale.

Inouye also called the commissioners to Capitol Hill on Dec. 13 for an oversight hearing on "current proceedings involving media and telecommunications policy."

The House Commerce Committee scheduled an oversight hearing for Dec. 5.