We’ve received some requests to help explain just what went down at the FCC this week.
Hard on the heels of FCC Chairman Martin’s full-tilt-boogie on relaxing media ownership/cross-ownership restrictions in recent hearings in DC and Seattle, comes his push to invoke Section 612(g) of the 1984 Cable Act – the so-called “70/70” provision. In short, this provision states that at such a time when cable systems (36 channels or more) pass 70% of US homes, and 70% of those homes subscribe, the cable industry shall be deemed to be uncompetitive, allowing the FCC to then adopt additional unspecified regulations in order to increase program diversity.
While Martin’s 70/70 gambit has received a great deal of press and analysis, it is not as straight-forward a matter, nor as urgent an action item, as the media ownership issue. There remain now just 11 more days for comments to be filled on the media ownership matter. If you haven’t yet submitted comments in that proceeding, please visit StopBigMedia.com and do so – a simple online form is there, as well as info on other steps you can take to help.
Before moving on to 70/70, please note these important up-coming meetings:
Dec. 5 – House Oversight Hearing of the FCC: Media Ownership – Subcommittee on Telecommunications & the Internet; 9:30 am.
Dec. 13 – Senate FCC Oversight Hearing – Full Commerce Committee; 10 am
“At this hearing, the Committee Members will hear from the five Federal Communications Commission commissioners on current proceedings involving media and telecommunications policy.”
Dec. 18 – the next public meeting of the FCC.
StopBigMedia suggests you contact your congressional reps. Especially if your reps sit on these committees, it would help IMMENSELY if you contacted them before these hearings, letting them know how important localism in general and PEG access in specific is to your community.
Thanks. Now – on with the show…
I’ve been collecting every story I could find about 70/70, but learned early on that blindly forwarding them could do more harm than good. At this point, I’m going to suggest that the best single piece of info on this is Harold Feld’s Nov. 14 blog post:
“Time For Some Hot Bi-Partisan Action on Cable: Or, Why Copps and Adelstein Need to Work With Martin Here Part I” – quoted extensively below. (In fact, since Harold is consistently fair in linking to those with opposing views, I’d say overall his blog is the best single source, certainly on this issue. ACM listserv readers may remember that Lauren-Glenn Davitian pointed to Harold’s blog after the FCC action this week for his take.)
Harold is an attorney with the Media Access Project – an organization that has a long history of being up-close and personal with the various media reform issues before the FCC. His post is fairly lengthy, but well worth reading in full. He gives an excellent whirlwind tour of cable regulation; great context-setting for those of us in the PEG access community.
I’m merely going to quote two extensive passages here, make one comment about where we’re at presently, and leave it at that. I don’t expect this topic to turn into a thread on the ACM’s lists, but this is an item we should all understand and be able to follow as the story develops. Here’s a start.
Harold begins his post by humorously addressing the difficulties some may have in accepting that Kevin Martin may actually be doing something helpful for increasing program diversity. In the second excerpted passage, after having looked at the source data and its sources, he then speculates about what additional regulations 70/70 could trigger – starting with a national PEG set-aside, and moving on to the ‘dreaded’ a la carte!
Time For Some Hot Bi-Partisan Action on Cable: Or, Why Copps and Adelstein Need to Work With Martin Here – Part I
by Harold Feld
I gotta hand it to the NCTA – they really know how to spin the press. Given the outrageous excesses of market power displayed by incumbent cable operators, you would imagine that activists would leap at the opportunity offered by Kevin Martin to reign in cable market power – regardless of whether one likes Martin personally or thinks he is a Bellhead or industry tool in other respects. But no, over the weekend, the NCTA has done an exemplary job of spinning the upcoming sledgehammer to cable market power as a bad thing.
I am talking primarily about the news that the FCC may invoke the “70/70″ provision of Section 612(g) of the Communications Act (codified at 47 U.S.C. 532(g)). For those not as obsessed with the Communications Act as yr hmbl obdnt, this provision states:
[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this subchapter.
Now you would think anyone who opposes media concentration would be jumping for joy here, wouldn’t you? At last, a clear source of authority for the FCC to regulate cable in the name of diversity, and a directive from Congress to do it (without preempting local franchise authorities). And one would certainly expect that the Democratic Commissioners, Copps and Adelstein, who have repeatedly shown themselves stalwart champions of diversity and enemies of consolidation, would rush to seize the moment. But while I hope the later is true, some normally sensible people are buying into the cable spin that this is somehow bad because (choose however many apply):
A) It’s an “archaic leftover” of another time and nowadays cable is “highly competitive.”
B) It’s not really true that the 70/70 test is met anyway so the courts will just reverse it.
C) Kevin Martin is an evil Bellhead who has it in for cable, wants to deregulate broadcast media, and shafted local franchising authorities, so you know this must somehow be evil, even though it is something media reform advocates have fought for over 20 years to achieve.
D) Somehow, this is just an effort to distract us from the fact that Kevin Martin is an evil Bellhead who eats puppies and throws kittens into trees for his amusement.
E) Martin is just slapping the cable guys around because they didn’t do family tier.
G) Somehow this helps Kevin Martin deregulate the broadcast industry.
Having spent the last several years trying to get the FCC to recognize the goddamn truth that 70/70 was met years ago, and trying to get the FCC to address leased access and carriage complaint issues, the 30% cable ownership cap, and a bunch of other reforms to address cable market power, I am just a shade peeved to see folks who should know better eating out of NCTA’s hand. Because public policy is not about whether I like or dislike the current FCC Chair or whether I would rather he focus on reigning in telcos rather than cable cos. It’s about what is the best public policy. And what Martin has put out for a vote: 70/70, reform of leased access and the carriage complaint process, and reaffirming the 30% cable ownership cap, are all things justified by the record and urgently needed.
What does 70/70 Do For Me?
The 70/70 trigger gives the FCC a “power boost” on a number of pending proceedings to reign in cable market power, such as the leased access provisions and the 30% ownership cap. It also potentially gives the FCC new authority. To take a few examples of possible FCC Orders.
1) National PEG set aside. The FCC could decide that, because PEG channels are being eliminated by state franchising rules, it will require all cable operators to set aside capacity for PEG programming regardless of whether the local franchising authority requires it. Hard to say that doesn’t “increase diversity.”
2) Must carry for Low Power TV stations. There are a lot of low power TV (LPTV) stations, many of them providing Spanish-language programming (others provide religious programming, home shopping or just plain local programming). While a small class of these have must carry rights on cable, most don’t. Again, hard to say this doesn’t “increase diversity.”
3) Sometime back, I wrote a piece about a company called VDC:Virtual Video Cable. They are trying to do for video what companies like Vonage did for VOIP — a purely internet-based play that lets you get cable networks via broadband. Unsurprisingly, cable operators refuse to sell them programming, claiming that the rules requiring them to sell programming to rivals do not apply here because VDC is not a “cable service” as defined by statute. Equally unsurprising — given the “craptastic” speed with which FCC Media Bureau staff enforce the law against cable companies (official slogan of staff “If we wait long enough, the complainant will go bankrupt and our cable masters will reward us with doggie treats!”) — VDC’s emergency complaint is still pending. Well, triggering the 70/70 threshold could provide the FCC with authority to resolve the issue in favor of VDC without deciding whether they are a cable service. Similarly, the FCC could prohibit Comcast and other cable companies from making exclusive deals for “must have” video on demand, for “must have” sports programming, or other anticompetitive means by which cable operators prevent programs from appearing in other venues.
Of course, the FCC has none of these things teed up. The MVPD report merely notes that the 70/70 threshold has been met. If the FCC wants to do these things or anything like them, they would need to start a rulemaking and conclude that the new rules were necessary to maintain or increase diversity of views. Which leads us to the great elephant in the room — a la carte.
Isn’t this a sneaky way for Martin to do A La Carte/Isn’t this a great way to finally get a la carte?
“A La Carte” is French for “split the public interest community into bitterly warring factions.”
A La Carte rules would require the cable operators to offer cable channels on a per channel basis. Cable operators could also offer bundles, but would be required to offer individual channels as well.
A number of organizations like Consumers Union, Free Press, and Consumer Federation of America, love a la carte. They believe it will reduce cable rates and will force cable operators to give independent channels a fair chance because cable companies will only make money if they sell programming people actually want. On the other hand, a number of organizations like National Hispanic Media Coalition and Minority Media Telecommunications Council hate a la carte. They believe that minority-oriented programming and news programming will die, and we will be left with a handful of channels that compete for the ever-popular-with-advertisers 18-35 yr old white male eyeballs.
At Media Access Project, we resolve this conflict among our close allies by saying “SO HOW ABOUT THEM RED SOX!” everytime the subject comes up. If pressed, we will spill coffee or some other suitable beverage all over ourselves and flee the building. We have actually all signed a statement affirming that, even if threatened with waterboarding, we will not endorse a position on a la carte. —>
And the outcome for Section 612(g) at the FCC this week? Democrat Copps agreed with Martin and said ‘go for it’, republicans Tate and McDowell said the threshold hadn’t been met, and democrat Adelstein said, essentially, he’d like nothing better, but would like better data. (In fact, he said, “I would have no hesitation to invoke our authority if the evidence clearly justified that the standard had been breached. Many positive initiatives to promote diversity, such as a national baseline PEG requirement, could result.”)
So that’s what they voted for – let’s get that better data in here but fast. Their statements are all online at FCC.gov.
Further press and blog accounts you can read will fill in the colors and political ramifications of these people’s actions, and that can be fun to know – but for now, for the PEG access community, our efforts can only be strengthened by the prompt delivery of better data. In the meantime, perhaps we may want to better inform ourselves about this ‘a la carte’ thingy. Seems possible that’s not going to go away. As Harold says, “stay tuned.”