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.

We have already seen that when the Democrats work with Martin to protect independent programmers, good things happen. Holding the cable operators accountable under the set-top box law, letting The America Channel arbitrate its case against Comcast, these are areas where Copps and Adelstein recognized that their interest in promoting diversity and free expression converged with Martin’s interests in restricting cable market power and worked together to create well-crafted rules that promote the public interest without selling anyone out. This is that “bipartisan” thing everyone claims they want – work together where you can, oppose each other when you must, and always keep in mind the public interest rather than your partisan ends.

Below, I run through some background on what’s going on — especially with the 70/70 test. Since that will make this ridiculously long, I will save for Part II why Copps and Adelstein need to seize this opportunity before the NCTA gets a chance to work its mind-clouding magic and once again get a quorum to vote that slavery is freedom and market power is competition. And, since Martin’s motives appear to absolutely rivet everyone’s attention, I will give my best speculative guesses followed by my explanation of why Martin’s motives don’t matter. Because, as in all good politics, Martin has maneuvered it so that he will get his political pay off whether the Democrats vote for the cable items or not. So rather than waste the best chance at cracking cable market power in the last 20 years and give Martin a political victory anyway, the only sensible thing to do is vote for the items and make it clear that doing the right thing in cable over here doesn’t give Martin a pass on previous bad Orders (like preempting local franchise authority) or give a license to deregulate broadcast ownership.

More below . . . . [Read More!]

Well, it took nearly a year since the FCC committed to reforming the leased access and carriage complaint processes as part of its Adelphia Transaction Order, but the wait proved worth it. On June 15, the FCC released a notice of proposed rulemaking asking all the right questions and opening the door for major changes in two critical but dysfunctional laws designed to break the stranglehold big cable companies have over cable programming: cable commercial leased access (47 U.S.C. 532) and the prohibition on favoring affiliated programming (aka “carriage complaint process”) (47 U.S.C. 536).

Done right, these two laws can usher in a new era of independent programming by giving programmers access to cable systems on fair terms. As you might imagine from the current cable programming universe — in which we get 30 different flavors of HBO (affiliated with time Warner) and however many Comcast-affiliated channels Comcast chooses to carry regardless of how few people actually watch, but you can't find local programming or programming that competes with Comcast or Time Warner programming — the FCC has done a rather crappy job of implementing these rules since Congress passed the current versions in 1992. Nevertheless, wild-eyed optimist and occassionally successful crusader for lost causes that Iam, I think we have a real opportunity here to make these rules work. All it will take is for the progressives and conservatives who like to whine about how the media is all biased one way or another to get off their patooties and actually file something with the FCC. Then all the progressive and conservative would-be programmers will have their chance to sell their programming directly to audiences rather than negotiating with the likes of Brian Roberts, Sumner Redstone or Rupert Murdoch.

Notice appeared in the Federal Register on July 18, which makes comments due September 4 and reply comments due September 21. For those without calendars, this translates to the day after Labor Day and the day immediately before Yom Kippur. So I confess I begged for and got and extension. Now, comments are due September 11 and reply comments due October 12. The relevant docket number for those of you who file (and you know you all should!) is MB Docket No. 07-42.

So tired of watching crap you hate on cable, and wondering why people can't get good programming on despite having a gazillion channels? See below . . . . [Read More!]

Some of you may recall The America Channel and their efforts to blow the whistle on Comcast's exercise of market power in the cable programming world. As part of resolution of the Adelphia transaction, the Commission declined to provide any specific relief for The America Channel. They did promise to have a general rulemaking on the carriage complaint process (whereby independent programmers complain that cable operators have illegally discriminated against them) and the leased access process (whereby independents can lease access to the cable system) (a proceeding the Commission announced last month). The Commission also created special protection for regional sports networks (RSNs) so that Comcast could not do unto others as they did unto Mid-Atlantic Sports Network. As part of the FCC's order approving the Adelphia transaction, a regional sports network can demand carriage on Comcast or Time Warner, and can require that an arbitrator resolve the cost issues.

TAC, seeing that it would get nowhere with its old programming idea, proceeded to reinvent itself as a regional sports network. It has deals with a number of NCAA Division I schools — particularly for the less popular women's sports, which it will bring to the various regions the schools are in. TAC will pay for the production costs but will not pay for the games themselves, a reversal of the usual royalty agreement I understand. TAC has gotten carriage on cable overbuilder RCN, provided TAC can reach the critical mass of carriage on other providers to achieve viability.

So how's that working out, and what will the FCC do? More below . . . . [Read More!]

O.K., it is probably a bad idea to make fun of people for doing stuff you want them to do. So when the FCC released a leased access complaint on January 29, I should probably have just applauded for joy. But given that it took three years to resolve a complaint when the cable company in question never even filed a reply to the complaint, I think a little mention of what is wrong with the current leased access rules, and the Commission's enforcement of same, is needed.

And I will pause to put in a genuinely good word for the New Media Chief Monica Shah Desai for getting this cranked out relatively quickly after she got there. Keep crackin' that whip!

But the decision also highlights everything I've been complaning about in the current leased access system so that even the people who want to make it work are having a heck of a time and why we need the leased access rulemaking that Martin promised Adelstein back in July.

Some analysis below . . . .
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I confess I hadn't heard of VDC: Virtual Video Cable until they filed a program access complaint. Of course, since the vast majority of people probably hadn't heard about that either (or even know what a “program access complaint” is), I imagine I remain in the distinct minority.

VDC bills itself as a purely broadband-based cable-like service. I compare it to “video VOIP” (or voice-over-IP for the five readers unfamiliar with the acronym). In theory, a service like VDC could provide real competition to cable by letting you get an actual cable service (as opposed to video clips like YouTube or random episodes from iTunes or from some streaming site) — just like VOIP allows a company like Vonage or Sunrocket to offer voice if you have a broadband connection so you can discontinue phone service, saving a bundle (assuming your broadband provider does not make you buy a bundled service or interere with your VOIP packets).

So it is unsurprising that when a possible competitor like VDC emerges, cable uses its market power to try to squash it like a bug. In this case, cable companies have resurected one of the old reliable tricks from their early days: deny the would-be competitor needed programming. Here, Time Warner has refused to enter into negotiations to make CNN available to VDC. (We can expect that if this doesn't do the trick, cable cos will move to the new fangled tricks — mess with the packets.)

But VDC has a few weapons in its arsenal. It has invoked a provision of the 1992 Cable Act called the “program access rule” that Congress passed to force cable operators to make programming available to would-be competitors like Direct Broadcast Satellite (DBS) providers. VDC has only two problems:

1) The complaint is being handled by the FCC's usual cable enforcement staff which, as I have observed previously, does not exactly move on “internet time.”

2) The program access rules stop working (“sunset”) this October. So even if staff resolve the complaint in something approaching reasonable time, it may not do much good.

So is video VOIP dead before it even starts? Not necessarily. For a full explanation of what's going on and how you (yes, you) can help make video VOIP a reality, see below . . . .
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