One FCC Commissioner doesn’t appear to be buying that the 70/70 test has been met. Robert McDowell said from what he knows right now, he’s not prepared to vote for a video competition report that concludes that cable has surpassed 70% penetration of homes passed. "The plucking of one study to support what may be a predetermined outcome I think deserves more public comment," the Republican commissioner said at a Media Institute lunch Mon. Just a year ago, the FCC determined cable subscribership was at about 60%. FCC chmn Kevin Martin is "asserting that the cable industry, and the cable industry alone, is facing less competition and should be subject to more regulation," McDowell said. "This is a radical departure for the Commission …" He and fellow Republican Deborah Taylor Tate have requested more info from Warren Comm, which the FCC is using to help justify that the 70/70 rule has been met. For its part, Warren has said its data is not suitable for determining whether the 23-year-old rule has been triggered. "Why is the FCC suddenly changing its evidentiary standard and methodology just for this one industry?" McDowell asked, at the same time pondering whether this shift actually weakens the chmn’s arguments for updating the cross-ownership ban (an issue he said he’s reserving judgment on). "I am searching for credible answers to these and many other questions—thus far to no avail." There’s some thought that Martin, as the head of the agency, may be able to send the video competition report to Congress without a vote. If not, Martin may have to rely on convincing the Commission’s 2 Dems to vote that the 70/70 test has been met. (Unfortunately, Cfax opted not to wear sneakers to the Four Seasons lunch and was unable to chase down fellow attendee Jonathan Adelstein to ask about his thoughts). When asked by a reporter if he’d spoken to Martin, McDowell said he hasn’t seen him since the Nov 9 Media Ownership hearing in Seattle, which was held the day before the NY Times piece in which Martin announced cable had met the 70/70 rule. Martin has frequently criticized cable for its rising prices, but McDowell countered that the Commission doesn’t solicit enough data to determine why these prices are going up. "It’s not necessarily an apples-to-apples comparison to say cable rates have gone up 100%" since ’95 because customers now receive twice as many channels. Other FCC Doings: McDowell confirmed that the FCC is also expected to vote on a Martin proposal next Tues that would slash leased-access rates by about 75%, as well as on an arbitration proposal on program-carriage disputes (he declined to say how he’d vote).

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