Burying Communications Law Relics

Rep. Marsha Blackburn introduced a bill yesterday that would bury a relic of communications law that may have made sense when adopted but no longer does. The Consumer Freedom of Choice in Cable Act would repeal the FCC's authority to impose new regulations on cable operators under the so-called 70-70 provision of Section 612(g) of the Communications Act. Under this provision, the FCC is given discretion to impose additional regulations if it finds cable is subscribed to by 70% of the households to which it is available. Reps. Edolphus Towns and Joe Barton are co-sponsors.

A good case can be made for comprehensive reform of our communications laws in a way that replaces the current market-distorting techno-functional regulatory regime with one based on post hoc determinations grounded in competitive marketplace realities. But, in the meantime, there is something to be said for reform one step at a time, especially with repsect to a measure that has been as contentious as the 70-70 rule.

The way the brouhaha evolved in the last two weeks over whether the FCC should, or could, find that the 70-70 test was met did not do the agency much credit. And the truth is that it never should have happened. Despite the different and ambiguous ways in which the data may be constructed and interpreted, everyone knows that cable operators face vigorous competition in the video segment of the larger broadband market from two satellite providers, and, increasingly, from the telephone companies. Cable's share of the video segment has been declining, not increasing. Rep. Blackburn's bill, if enacted, would ensure that this or a future FCC doesn't use the 70-70 rule as a basis to impose new regulations on the cable industry at a time when the agency should be adhering to the agency policy pronouncement adopted five years ago: Broadband operators, regardless of the technology platform employed, should be subject to a "minimal regulatory environment."

The statutory provision that Rep. Blackburn's bill would repeal authorizes the FCC to impose additional regulations, even assuming that the 70-70 finding were made, only if "necessary to provide diversity of information sources." In 1984, when the statute was enacted, policymakers may have had a legitmate concern about the availability of a diversity of information sources. In today's environment of media abundance, it is fanciful to suggest there is a lack of information diversity.

Rep. Blackburn has a good understanding of the difference between the media and communications environment now and then. She delivered an excellent Keynote Address at the recent Free State Foundation/Institute for Poilicy Innovation communications policy conference, and I commend the full text to you. But note this line which presages her action on the 70-70 rule: “It should be the free market that decides what works and what does not work, not government intrusion. And, as the process unfolds, it is going to be critical for the United States Congress and for the Commission to hold the line on light touch regulation. And to resist the urge to unbundle what is already working in the free market system.”

Repealing the provision giving the FCC authority to impose additional regulation on cable providers makes sense in today's competitive broadband environment. And taking the free market-oriented philosophy embodied in Rep. Blackburn's keynote address and making it central to an ongoing effort to envision a new competition-centered communications law that puts marketplace realities at its core also makes sense.