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FCC cable plans provoke politicians

Martin sternly cautioned against proceeding

Federal Communications Commission chairman Kevin J. Martin’s reported plans to impose new regulations on cable television as early as today are provoking the ire of several key members of Congress, including fellow Republicans.

At least five GOP legislators — including House Republican leader John Boehner — and a dozen House Democrats have written to Martin within the last week, sternly cautioning him against proceeding with new regs scheduled for a commission vote during today’s monthly FCC meeting.

Certain Dems also took issue with Martin’s management style.

The lawmakers warned Martin that the regs would conflict with both the deregulatory approach that Congress has taken to cable and the limits of the FCC’s statutory authority. Only Congress can decide whether re-regulation is necessary, they said.

The controversy centers on Martin’s recently stated claim that cable has reached a level of market dominance that triggers a 1984 Cable Act provision allowing for more regulation to promote diversity and competition. Martin was quoted in news reports saying that new regulations were now warranted because of cable’s dominance.

The National Cable & Telecommunications Assn., the industry’s trade group in D.C., disputes that cable has reached that level of dominance and has, in turn, claimed Martin is trying to use whatever regulatory clubs he can grasp to beat cablers into accepting a la carte subscriptions, which Martin favors but lacks the authority to impose.

New regs Martin is said to be looking at include possible ownership caps.

But now even fellow Republicans are telling Martin he may not have any authority to impose new regs on cable.

The 1984 Cable Act provision, known as the “70-70” rule, “was not intended to grant the FCC carte blanche to impose other types of regulation,” Boehner wrote in his letter to Martin. “Moreover, it was drafted more than 20 years ago as a mechanism to respond to decreases in sources of content, and that clearly is not a problem today. There also appears to be significant dispute over whether or not the 70-70 trigger has been met.”

GOP Sens. Jim DeMint (S.C.), Kay Bailey Hutchison (Texas), Gordon Smith (Ore.) and John Sununu (N.H.) jointly wrote Martin on Monday, warning him that “sweeping new regulations would interfere with the marketplace and potentially undermine congressional authority and intent.”

“It is clear to us that it was Congress’ intent that the marketplace, and not regulatory fiats, should govern wherever possible,” the solons continued. “If there is to be a fundamental shift or adoption of new regulatory policies, it is up to Congress, not the commission, to implement it. The commission must be careful to not substitute its regulatory preferences over the determinations of the marketplace.”

The letter from Democrats chastised Martin for pursuing a mandate for multicast must-carry, which would force cablers to carry as many as six digital channels that a broadcaster could transmit, following the switch to all-digital TV in February 2009.

“You have presented no evidence to support your assertion that multicast must-carry would promote program diversity and increase programming choices,” they said.

House Judiciary Committee chairman John Conyers (D-Mich.) sent a separate letter late last week, admonishing Martin about “recent actions and announcements by you that appear to conflict with requirements for transparency and public accountability in agency decisionmaking. I am also concerned that some initiatives you continue to advocate may undermine diversity in video programming and media ownership.”

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