FCC's McDowell at odds with cable's reregulation

He calls plan a 'radical departure'

FCC chairman Kevin Martin's attempt to reregulate the cable industry is running into trouble at the commission as a fellow Republican commissioner on Monday criticized the plan.

Martin reportedly is pushing to place tougher regulatory strictures on cable operators, claiming that their dominant market position gives the agency the power to regulate them under a provision in the 1984 Cable Act.

"This is a radical departure for the commission," Robert McDowell said during a speech before the Media Institute, a free speech think tank.

McDowell questioned the evidence that Martin used to determine that cable is available to 70% of the nation's households and at least 70% of those households subscribe to the service. Under the 1984 law, once the 70-70 test is met, the FCC can step in and regulate the industry.

Martin has been attempting to force the cable industry to provide its offerings on a per-channel basis. He contends that consumers should be able to pick and choose what they want and only have to pay for what they get. Martin claims to see two benefits to so-called a la carte pricing: Consumers will pay less, and they can avoid racy programming they find objectionable.

The cable industry contends that a la carte programming will cost consumers more on a per-channel basis and that consumers will end up paying more for fewer channels. They contend that subscribers with concerns about too much sex, violence or rough language already have the ability to block programming with the V-chip or through their cable operators, though the operators don't refund the money for channels they block at customers' request.

If the 70-70 test is met, Martin could get his way, but he has to persuade at least two other commissioners to go along with him. McDowell is considered a key swing vote on most issues. Republican commissioner Deborah Tate also has concluded that Martin's data is faulty; in a letter sent late last week, McDowell and Tate questioned the chairman's action.

Martin obtained his data from the Television and Cable Factbook, published annually by Warren Communications News. In the past, the agency's analysis included used Warren, two other outside sources and its own annual cable price survey.

Warren chairman and publisher Paul Warren said Wednesday that his company's data was incomplete because all cable operators refused to disclose their subscriber and homes totals for its survey.

The change led McDowell to call for a more thorough examination of the data Monday. After his speech, he told reporters that he wouldn't support Martin because the way the data is collected now makes it look like the books are being cooked.

"No," he said when asked. "It screams out for public comment, and we haven't had that yet."

Which leaves Martin needing the two Democratic commissioners' votes if he is going to get his way. While one of those Democrats, commissioner Jonathan Adelstein, listened to the speech, he declined comment. A call late Monday to commissioner Michael Copps was not returned by press time.