I need not remind anyone here about FCC Chairman Kevin Martin’s ongoing “war on cable.” Even if you hate the cable industry or capitalism in general, there’s just no way I can see how anyone who believes in the rule of law and good government can support Martin’s incessant abuse of power in his Moby Dick-like crusade against the cable industry. A crusade, incidentally, which happens to be motivated by Chairman Ahab’s desire to control speech on cable television, as I’ll note below.
Anyway, the latest chapter in this miserable saga of government-gone-mad is Martin’s recent effort to begin a far-ranging data gathering effort concerning cable prices and analog-to-digital channel movements under the guise of individual complaint enforcement. In a new paper entitled “Der Undue Prozess at the FCC: Part Deux,” my PFF colleague Barbara Esbin shows, once again, how the FCC’s regular processes and procedures are being perverted by Martin to achieve ends not within the agency’s delegated authority. And the results, in this case, will be profoundly anti-consumer.
Esbin documents the four flaws in the FCC’s investigation as follows:
(1) the FCC has very limited authority to regulate cable rate levels; (2) to the extent lack of advance notice of channel moves is at issue, local franchising authorities (LFAs), not the FCC, are statutorily empowered to carry out enforcement activities; (3) the FCC has no rules either prohibiting cable operators from migrating cable programming channels from analog to digital transmission or requiring corresponding per-channel rate reductions; and (4) to the extent the FCC is required by Congress to collect data on the multichannel video programming distributor (MVPD) market and cable pricing generally, the agency is directed to do so by means of its annual video competition and price survey reports.
Thus, not only is the digital cable probe being conducted in a manner that calls into question the fundamental fairness of agency processes (with guilt virtually presumed), it seems to be pursuing goals hard to fathom. What the cable industry is doing in migrating its legacy analog cable services to digital transmission is unambiguously pro-consumer, and the FCC’s probe will undoubtedly slow its progress. It is difficult to conceive of how consumers will benefit from this diversion of public and private resources as the nation approaches the critical switch-over from analog to digital television broadcasting just three short months from now. The public interest would be better served if the FCC would “stick to its knitting” and faithfully carry out its statutory mission. No more, and certainly no less.
Esbin goes on to note that, sadly, “this scenario is getting to be all too familiar: the FCC’s regular processes and procedures appear to have been perverted to achieve ends not within the agency’s delegated authority.” Of course, it’s obvious to anyone who has followed this war between Martin and the cable industry what this latest fiasco is really all about. Esbin explains:
So what is the agency really after? One of the first to report on the probe, Amy Schatz, identified its purpose as: “FCC Opens Investigation Into Cable-TV Pricing.” According to Todd Shields, Chairman Martin has said: “Listen, if I can think of anything that’ll help lower prices for cable customers, I would move forward on it.” But by seeking information concerning negotiated fees from wholesale programming suppliers, one suspects yet another back-door attempt to regulate such wholesale prices with an eye toward accomplishing the FCC Chairman’s cable Holy Grail: a la carte programming offerings.
I’ve discussed a la carte regulation ad nauseum here, so I will you spare you another rant. But let’s not forget what really motivates that crusade: Martin’s desire to “clean up” content on cable and satellite TV. A lot of “consumer advocates” are getting taken for a ride by Martin and his claim that he’s out to be Mr. Consumer Advocate and get our cable rates down. (Nevermind asking what the hell a Republican FCC Chairman is doing playing up price controls and getting in bed with the far left regulatory crowd). The fact is, this war has always been about speech control, not cable rates. The “consumer advocates” are just convenient pawns in a back-door censorship power grab.
Anyway, Esbin powerfully concludes here analysis with a summation of everything that is wrong with the way that Martin has conducted himself in this matter, and others:
What is disturbing is the process the FCC’s Chairman is using to pursue what might otherwise be a perfectly legitimate inquiry into a range of industry-wide practices in connection with the migration towards all-digital operations. This is no ordinary FCC enforcement action and it is difficult to conceive of how this use of agency resources will further two of the FCC’s most pressing current goals: ensuring a smooth transition to digital television transmission and encouraging the speedy deployment of ever higher-speed broadband Internet services. In fact, the probe is more likely to slow progress on each front as enormous resources are diverted to producing and reviewing information relevant mostly to activities that lie outside the scope of the FCC’s regulatory jurisdiction.
More importantly, consumers cannot possibly benefit, in the long run, when the government conducts its business using questionable procedures in a manner that strongly suggests a lack of impartiality, fairness and predictability, because there can be no confidence that the results of such actions will be fair and reasonable. If the cause of this government investigation is just, its outcomes can only gain, not lose, by scrupulous adherence to the rule of law.
Amen. Hopefully the next FCC Chairman learns that lesson and behaves themselves appropriately.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.