Court Throws Out FCC Cable Ownership Limit

[cal04]

Source: Reuters

A U.S. appeals court on Friday threw out a regulation that has limited cable companies to serving up to 30 percent of the country's subscription television market, a big victory for operators like Comcast Corp and Cablevision Corp.

The U.S. Court of Appeals for the D.C. Circuit ruled that the Federal Communications Commission's rule, adopted in late 2007, was arbitrary and capricious and vacated it. The regulation was first set in 1993 but has been repeatedly challenged.

"The commission has failed to demonstrate that allowing a cable operator to serve more than 30 percent of all cable subscribers would threaten to reduce either competition or diversity in programing," the court said.

(snip)
The latest ruling presents a major challenge for new FCC Chairman Julius Genachowski, a Democrat, who will now have to decide whether to appeal the decision to the Supreme Court, try to start from scratch, or abandon the regulation altogether.

Read more: http://www.nytimes.com/reuters/2009/08/28/business/business-us-cable-fcc-ownership.html

[derby378]

1. Comcast hungry! Comcast need more food!

Good thing we don't have Comcast anymore...

[ejpoeta]

2. so what does this mean?? that they can further conglomerate and take over

all of our airwaves!!

[dmosh42]

3. Yep, complete "managed news"!

[ejpoeta]

4. great.... like it's not homogenized enough already.

[dotymed]

5. UNBELIEVABLE

I hope the FCC takes this to the SCOTUS. We must REINSTATE THE
FAIRNESS DOCTRINE, because obviously our viewing is
monopolized and there is no one to TELL THE TRUTH, just the
corporate mantra. We, the people OWN the airwaves, yet if you
start up an independent (home operated) radio or tv station,
they will prosecute you!

PLEASE K&R THIS MESSAGE. IT IS REALLY IMPORTANT THAT
CITIZENS UNDERSTAND THAT THEIR FREEDOMS ARE BEING TRAMPLED ON,
MORE.

[Statistical]

7. Cable companies don't use the "airwaves"

they broadcast content via a private network.
Not going to have much case there.

[pattmarty]

6. Start from scratch!!! ALL these cable companies have to be regulated,............

............This is just another problem in the US that needs major overhaul. My opinion, if it goes out over the air (cable or otherwise) it has to be based on fact and truth (NOT truthiness). I am not a lawyer but I know this is not an easy law or rule to enact, but the time has come for ass holes like O'Reilley, Hannity, Beck and others to quit their bullshitting and be held to some kind of standard.

[onenote]

9. why stop there? What about newspapers? Or the Internet?

Why should only content that goes out over the air or a wire (but excluding the Internet) be subject to special rules?

[dotymed]

12. NEWSPAPER OWNERSHIP (MEDIA) IS SUPPOSED TO BE CONTROLLED

NO ONE OWNS THE INTERNET.though they try.....

[onenote]

15. A fine progressive value: regulate newspaper content?

Willam O. Douglas is rolling over in his grave.

[quiet.american]

19. Consolidation of newspaper ownership is the issue, not content. nt

[24601]

42. But if ownership were content neutral, it wouldn't be an issue

However, as is in most business, the golden rule applies and thems with the gold makes the rules, often filtering down to the content of the media involved. It it was irrelevant, if ownership could not influence the positions taken, even if only by the hiring of key staff rather than overt edicts, who would care?

[dotymed]

45. ONENOTE, NO ONE IS ADVOCATING REGULATING CONTENT

I am talking about the ownership of many newspapers by one
entity. Which, I am sure would "regulate" their
content, to the detriment of Americans. THE FAIRNESS DOCTRINE
definitely needs to be reinstated so that all media is
required to report differing views. Reagan determined that
"the content of NEWS media should be determined by the
"FREE MARKET." That is selling the truth to the
highest bidder.

[onenote]

46. imposing a "fairness doctrine" on newspapers is indeed regulating content

Shout if you want, but telling a newspaper what it has to print -- that it has to provide opposing views? That is content regulation. And "all media"? Should DU have to provide a forum for opposing views?

[Occulus]

47. DU or other websites represent The People talking amongst themselves.

There's a rather massive difference between a discussion board or a blog and a newspaper or a cable television news broadcast. I expect you already knew that, though.

Nobody has ever explained to me the huge leap of logic required to get from saying "you can only own this many media outlets" to "you have to print this type of content". Limiting the number of newspapers, television stations, radio stations, or cable companies you own in no way forces you to print or broadcast or to print, or to not broadcast or print, any particular thing.

The same is true of the Fairness Doctrine, which along with media consolidation gave rise to FAUX and its ilk. With no requirement to allow questionable "facts" or outright lies to be challenged, they became free to lie until the lie becomes truth. This is the reason why we're hearing such incredible insanity coming from the Right regarding a national health care policy, and why they're making such insane claims, such as death panels- their beliefs are predicated upon lies spun out of thin air and sent into their homes as truth, unchallenged and unquestioned.

Only the Fairness Doctrine or something like it can rein that tactic in. Print and broadcast news media should be expected not to shout "fire" to millions at once, at the same time knowing there is no fire. They wield far, far too much power at the best of times for us to allow that.

Something has to be done. If it means an equal time requirement, even when that doesn't "go our way", fine. Personally, though, I'd rather see a breakup of Big Media (remember Ma Bell?) first.

[lib_wit_it]

28. And the difference is...?

[pattmarty]

22. I agree. The post was about cable outlets. There ought be a standard.............

..........for papers, magazines AND the internet (although It's gonna be a bitch to "regulate" the internet). There used to be a "truth in advertising" law or regulation in the early days of TV. If you made a claim, for instance in a commercial, it had to reach a certain standard for fact or "truth" if you will. This goes for the Left or Right, although the Right is quite a bit more loose with "truthiness" than the Left.

[dotymed]

10. AMEN

[Overseas]

8. Very strange. Failed to prove the case that removing ownership limits

would not reduce competition when we know that it already has?

http://www.corporations.org/media/

[onenote]

14. Didn't read the opinion did you?

The stated purpose for imposing a horizontal ownership limit on cable (i.e., limiting the number of subscribers that they can serve) is to ensure that one cable company cannot prevent a programming service from succeeding. In other words, it is assumed that a programming service needs to have access to X sets of eyeballs to succeed and that if one company controls enough subscribers that the programmer can never achieve the necessary level without carraige by that one company. The limit is supposed to prevent that.

The rules in question have been reviewed several times. A few years ago, the FCC found that a programmer needed to reach at least 40 percent of the cable and satellite homes in order to succeed. While that would have suggeseted a 60 percent limit, the FCC adopted 30 percent cap. The court struck it down as arbitrary and directed the FCC to try again, noting specifically that the FCC also should take into account the impact of competition from satellite. (In other words, the fact that if a programmer can't get on a cable system, it might still have access to that subscriber if it gets carriage on a competing satellite service to which the customer can then shift).

The FCC, under its most dishonest chairman ever, Kevin Martin, came up with a cockamamie scheme for reinstating the 30 percent limit. They did this by reaching a new conclusion that a programmer didn't need access to 40 percent of the subscribers to succeed, it needed access to 70 percent. Unfortunately for the FCC, it basically made up the analysis that came up with this result. Moreover, the FCC royally pissed off the court by ignoring the court's express instruction that the growth of satellite competition be considered.

When the law directing the FCC to adopt a horizontal cap was passed in 1992, more than 90 percent of all subscribers had one and only one choice of multi-channel subscription television service. And a significant percentage of the program networks were owned in whole or in part by cable operators. Seventeen years later, virtually all television households have a choice of at least three multiple channel providers; video content is increasingly accessible over the Internet; and the total number of cable channels has increased dramatically and the percentage in which cable operators have an ownership interest has dropped precipitously.

There is need for checks on media consolidation (particularly broadcast consolidation and some limit on vertical integration between programmers and distributors). But this particular rule is a vestige of a different era and the FCC has yet to establish a rational basis for a particular cap.

[Overseas]

17. Yes I was just reacting to the dismal right wing dominance of media ownership.

Whatever is allowed now is still not enough to overcome the power of cash.

I have only one choice of cable companies. I am a renter so I can't have a satellite dish installed without special permission from the owner.

Thanks for the clarification. I'm just so disheartened by the right wing dominance of our mass media that I jump at any chance to impose ownership limits. Sorry to hear this attempt was so poorly designed.

[onenote]

18. landlords are limited by law from resticting the installation of a satellite dish

Not in all situations, but in many.

See http://www.fcc.gov/mb/facts/otard.html

[ixion]

11. "The commission has failed to demonstrate...

that allowing a cable operator to serve more than 30 percent of all cable subscribers would threaten to reduce either competition or diversity in programing," the court said.

That statement is illogical. If a company has more than 30% (which could mean 100%, in theory) competition would be reduced.

Someone on the court probably made a nice little kickback.

[AlbertCat]

13. The commission has failed to demonstrate...

The court didn't say it thought it wouldn't reduce competition.... it said the commission failed to demonstrate that notion.

There's a difference. Subtle, but a difference.

It's now up to the commission to demonstrate it.... which doesn't seem to be too hard, but...y'know...law!

[ixion]

23. I understand the subtle nuance there, my premise, though, is that

the demonstration is self-evident by definition.

That is, if a single company holds greater than 30% percent market share, the size of the market is reduced, hence fewer opportunities for competition.

[onenote]

25. you could say the same thing if someone holds a 29 percent share or 31 percent

or 2 percent for that matter. The problem is that its not self evident that the ability of a programming service to succeed is meaningfully restricted if one outlet controls 30 percent, leaving 70 percent of the market available to it. Indeed, the ability of some programmers to succeed may be enhanced if they only have to get carriage on one or two outlets serving a lot of subscribers rather than bear the transactional costs of having to cut separate carriage deals with lots and lots of little outlets just to get to the break even point.

[BootinUp]

16. Because big humungo corps are double plus good! nt

[JDPriestly]

20. OK. If you don't think this ruling is correct.

Cancel your cable. Cancel your cable subscription altogether. If everyone on DU canceled their cable TV, the world would be a better place. Cable would have to choose programming that people wanted to see and not the horrible stuff they are showing now.

[onenote]

29. If everyone on DU cancelled cable, nothing would change

You must think DU is bigger than it is.

Cable has gone from having 90-plus percent of the multichannel video market to less than 66 percent in the decade and a half. Tell me how the programming has changed.

[JDPriestly]

40. There are a lot of people on DU.

[Sebastian Doyle]

49. If I cancelled my cable altogether, I wouldn't be here

The only other realistic internet option here is Qwest DSL, and I'm not about to pay a $300 deposit up front to a company who has a history of crappy service. So I'm stuck with Comcast, though I'm not subscribing to their TV at the moment.

[villager]

21. failed to demonstrate that monopolies don't stifle competition?

How many GOP judicial appointments on that court...?

[onenote]

27. try reading the case so you know what its about

As the court pointed out, in the past 17 years since this law was passed, cable's horizontal share of the multichannel subscription video market has declined from over 90 percent to less than 66 percent and virtually every person has access to at least three and, increasingly, four or five, multiple channel television services.

[villager]

37. most people don't have access to "multiple" cable providers where they live

although some can sign up with a satellite company, by way of contrast.

or wait for DVDs or watch online...

and btw, does further discussion of the issue mandate you have to be snarky about it, or is that just a reflexive thing on your part?

[onenote]

38. sorry for the snark

Turning to the substance of the issue, while most people still have only one "cable" provider, millions now have access to a wireline video substitute provided by Verizon, ATT or a smaller telco. Moreover, as you reference, virtually everyone has access to two satellite delivered multichannel video providers. In fact, after Comcast, the next two largest multichannel video providers in the US are not cable companies, they are DirecTV and Dish. Yet, oddly, the rules that the FCC adopted would only apply to cable. If DirecTV grew to the point that it was the largest multichannel video provider in the country, the rules that the FCC adopted would not have limited their growth. Finally, Verizon,which is an "overbuilder" in that it serves areas that have another wireline cable provider, already has 2.5 million subscribers, making it the 6th largest wired multichannel video provider in the country.

[Jkid]

44. Problem with those wireline services is this.

Available in in Select (read: Urban/Major Metropolitan) Areas Only.

[depakid]

24. Easy enough to do another rulemaking and document properly

PLENTY of evidence out there... given a competent and properly motivated staff.

[onenote]

26. funny thing -- the evidence you seem to think is out there on this issue

isn't out there.

You have to understand the specific issue: its finding the point (if any) at which a cable operator controls access to so many subscribers that a program service (such as CNN, or USA, or Lifetime) that it can prevent a program service from becoming successful.

[depakid]

30. Of course it is!

Give me a couple of interns and I'll find tons of it that will more than pass the standard of review just on Comcast alone!

Fist place we'd look is at tiering structures. Remember, all you need for a rule to pass muster is "a scintilla of evidence." Not a difficult threshold to meet at all.

[onenote]

31. sorry but just claiming it to be true doesn't make it so

Gee if it was so easy why didn't you speak up during the last 17 years that the FCC has tried, and failed, to adopt a cable horizontal ownership cap. I'm sure the groups that support an ownership cap -- groups that have spent a lot of money trying to develop evidence supporting a 30 percent cap through studies, economic experts, surveys etc would've appreciated knowing that all they needed is a couple of interns.

What some don't seem to get is that there is a first amendment issue here as well (although the court did not have to reach it in this case). In general, we don't tell people in this country that at some point they are speaking to too many people and can't speak to anyone else. We don't tell USA Today that it can't serve a national audience or individual newspaper companies that they can't own newspapers in different cities. We don't tell Time or Newsweek that they once they hit a certain subscription point that they can't sell any more magazines. And, we can't limit the number of subscribers a cable company has without evidence -- real evidence not just "it is because i say so" evidence, that it is so large that it actually can prevent a programmer from succeeding.

[depakid]

34. What makes you think I haven't commented on proposed rules over the years?

personally and professionally?

As I said, this wouldn't be hard to prove provided that the commission was actually interested in framing and justifying their rules in a way that would seem "onerous" to the industries that they've been captured by.

And, what you don't seem to get is that in broadcasting law and regulation (and by extension monopolistic cable franchises- it's the rights of viewers and listeners that's paramount. The First Amendment doesn't provide a right to private censorship- that's anathema to 1st Amendment goals- and, as we've seen, extremely detrimental to the health of American Democracy.

What deregulation has created is, in essence a culture of lies- and one which is leading you down the primrose path toward third world status.

[onenote]

36. explain the cable "monopoly" to me

Where I live in Northern Virginia (not Comcast territory) I can receive multichannel video service from (i) Cox Cable (ii) Verizon Fios (iii) DirecTV and (iv) Dish Network.

While Cox is the biggest (and oldest) provider, its share has been shrinking. Its competitors offer services it does not, such as the NFL Sunday Ticket package, available only from DirecTV and several new niche networks only available on Verizon.

Its an interesting monopoly in which I can choose between four different providers of competing services. And in which programmers who want to reach me have at least four different ways to try to do so.

And while the court has recognized that in the context of broadcasting the rights of the viewers are paramount, they haven't extended that to cable or to "monopoly" newspapers that are often are the only print media in a town. If you think the courts would uphold a law that said that the Washington Post can't sell its paper to more than 30 percent of the homes in the DC area because limiting subscriptions would help ensure that there would be outlets for readers to get access to columnists and other syndicated features that the Post decided not to print...well, I'd take that bet.

[Occulus]

48. If the corporations broadcasting and printing to all those people weren't considered persons

there would be no First Amendment issue. Or Second, Third, Fourth, Fifth, etc. They would no longer have "rights" under the Constitution, but rather privileges, and we could- to put it bluntly- do what we want to them, without a legal leg for them to stand on.

We need to revoke corporate personhood. The tendrils of that legal doctrine extend into almost everything.

[rhett o rick]

32. One big step to the new corporation empire. Company empires are so last decade. Time for a corporate

conglomerate empire. Blackwater is looking for an employer.

[fascisthunter]

33. great... we can be the former Soviet Union

but instead of communism, we have fascism. Who the fuck was this judge?!

Monopolies kill economies and competition.... this judge is a stupid corrupt jackass!

[Endangered Specie]

35. Heh, too bad they will still never get my business until a la carte programming..

otherwise, hellllloooooo bittorrent :)

[wildbilln864]

39. k&r! nt

[elleng]

41. 'The ruling,

which could spark a round of mergers among companies that provide pay TV services, presents a major challenge for new FCC Chairman Julius Genachowski, a Democrat, who will now have to decide whether to appeal to the Supreme Court, draft a new rule, or abandon the regulation altogether.

"The FCC staff is currently reviewing the court's decision with respect to the limit previously adopted and the commission will take this decision fully into account in future action to implement the law," Genachowski said in a statement.

The decision came one day after the full FCC voted unanimously to launch an inquiry to examine competition in the U.S. wireless industry, a step that could lead to probes of other sectors including cable and broadband.'

nyt

[Vidar]

43. Another victory for the monopolies.