Martin Offers Compromise on Cable Subscriber Data
Tuesday’s FCC meeting was twice delayed as commissioners negotiated over a finding in a coming report to Congress that cable operators have surpassed a threshold that would allow additional regulation by the commission, Chairman Kevin Martin said. He told reporters that other commissioners are reviewing his compromise plan. Under it, the agency would require the companies to report data to help determine whether the so-called 70/70 test has been met. Most of the commissioners have been skeptical of data in the 2006 Video Competition Report that the Media Bureau said show more than 70 percent of U.S. homes passed by systems with 36 or more channels buy cable (CD Nov 15 p3). “Obviously, a lot of the commissioners had raised concerns about that previously,” Martin said.
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Under the compromise, cable operators would be required to report to the FCC within two months data showing whether the 70/70 test has been met, an FCC official said. The commission for years hasn’t collected enough information to determine whether the threshold has been reached, forcing it to rely on others for figures on homes passed and homes served, the two prongs of the test, officials have said. Commissioners haven’t discussed how operators would be required to report the data, said the source. The time for providing the figures will be “short,” said Martin, declining to be more specific: “This would actually be an additional step that was not included before.”
If commissioners agree to Martin’s plan, the video report will be stripped of the finding that the 70/70 test was met, said two other FCC officials. But that doesn’t mean the data the bureau used were bad, said Martin. The bureau calculated a 71.4 percent penetration rate, using figures of 67.1 million subscribers and 94.2 million homes passed from the Television & Cable Factbook, published by Warren Communications News (which also publishes Communications Daily). Factbook Managing Editor Michael Taliaferro has said the raw figures taken alone are not well suited to determining whether the 70/70 test has been met (CD Nov 14 p2). But Martin said that’s not the case. “Warren’s data is the most reliable,” he told reporters. “It’s the only industry source that distinguishes between systems [that have] 36 channels and those that don’t, as the law requires us to look at.”
But it’s not certain all other commissioners will go along with Martin’s proposal, said a third FCC official. A majority of the commissioners told Martin they want to strip the 2006 video report of references to the 70/70 test’s having been met and to ask cable operators for data for the 2007 report, the source said. But it’s unclear if that sentiment will hold, said the source. The commissioners were scheduled to vote at the meeting on a notice of inquiry for the 2007 report. It doesn’t make sense to seek current data for the 2006 report, the source said. A reason the meeting was delayed into the evening was that commissioners were waiting to see the edited video competition report before voting on it.
Martin first floated the compromise in visits to other commissioners about 10 p.m. Monday - 11-1/2 hours before the meeting was scheduled to start, two other FCC officials said. Some commissioners at first were skeptical of Martin’s plan because they didn’t believe documents previously filed with the agency made a persuasive case that the 70/70 threshold was exceeded, a source said. Martin said a “majority” of other commissioners initially weren’t interested in his proposal. But that changed overnight, he said. “It appears like there might be today. So as soon as we work that out we'll figure out whether we'll go forward with that issue or not.” The meeting was delayed first until 11 a.m. and then indefinitely.
The commissioners are likely to vote on several of the items on the meeting agenda some other time, industry sources said. A minority media ownership order was pulled minutes before the meeting was supposed to start at 9:30 a.m. (See separate report in this issue). Commissioners were likely to vote on the six additional items on the agenda, Martin said. It wasn’t certain that the commissioners would vote on an order that would require cable operators to slash the prices they charge to lease channels to independent programmers before the meeting, he said: “The other item I don’t know for sure where the commissioners are is the leased access item.” Some commissioners are concerned about a section of the order that would require binding arbitration in some carriage disputes between independent programmers and cable operators, said two FCC officials.
The commissioners are likely to approve a forbearance rulemaking notice on circulation, Martin said. “The forbearance item I believe may have been voted on,” he said. FCC spokespeople weren’t able to say whether the commissioners had voted on the item. Martin said a do-not- call order “is ready to go,” indicating commissioners were likely to act on it. An order paving the way for the FCC to issue more low-power FM licenses (CD Nov 27 p2) may be bogged down on the FCC’s top floor. “There still may be some commissioners who are proposing edits, but I think basically the LPFM item is ready to go,” said Martin.
At 5:45 p.m. Tuesday, there was still no word from FCC officials when the meeting might start. Commissioners’ travel schedules make it impractical for the gathering to be delayed until Wednesday, when Jonathan Adelstein and Michael Copps are scheduled to attend an FCC forum on WWOR-TV New York, Secaucus, N.J., in nearby Newark. - Jonathan Make