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Saturday, August 30, 2008

Another 4 months, still no FCC Video Competition Report
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Cable as Moby DickWell, another four months have passed since I last asked this question, but let me pose it again: Where exactly is the FCC's Video Competition Report and why is it taking so long to get it out the door? It wouldn't have anything to do with a certain Chairman Ahab still trying to get his cable whale, would it? No, of course not. I'm sure there's a perfectly rational reason that this 13th Annual report is now something like 18 months past due altogether. Right.

And keep in mind that the data in the 13th report is for a period ending on June 30, 2006, so whenever the report finally comes out the data in it will be well over two years old! That won't exactly reflect the true state of the video programming market considering the significant changes we have since that time, especially the continued explosive growth of online video, VOD, and DVRs.

The reason that I have been making a big deal out of this issue is because this gets to the question of just how "scientific" and "independent" of an agency the FCC really is. We are talking about facts here. Basic data. This is stuff the FCC should be routinely collecting and reporting on a timely basis -- indeed that is what Congress requires the agency to do in this specific case. And yet the agency can't do it because its Chairman is on this Moby Dick-like crusade against the cable industry. By the time this 13th annual report finally sees the light of day, the 15th annual report might be due! Outrageous. (And you wonder why many of us here are so skeptical about empowering the FCC regulating the Internet via Net neutrality mandates! If an over-zealous Chairman can politicize this issue, just think what might happen once we give the agency the authority to regulate the Net.)

Anyway, down below you will find the paper that Barbara Esbin and I wrote about the issue four months ago. Perhaps we should place a little ticker somewhere here on the site that counts each day that passes as we wait for the Commission to produce this report. We can take bets on when the agency's data holdout will end.

posted by Adam Thierer @ 2:12 PM | Cable , Mass Media , The FCC

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One wonders whether the delay might have something to do with Comcast's pending challenge to the 30% cap issued by the FCC last December on the share of the U.S. market any one cable company can serve. The DC Circuit struck down as unconstitutional precisely the same 30% cap back in 2001 saying while a 60% limit might be justifiable, a 30% limit was not. Briefs on that issue (including an amicus brief from PFF) are expected to be due this fall. Over the last seven years, the argument for such a cap as a check on the "gatekeeper" power of cable operators to control content has steadily weakened. Satellite television has continued to erode cable's once dominant market position, while fiber-to-the-home services like Verizon's FIOS have emerged as a third video pipe. The Internet itself has emerged as yet a fourth distribution platform for television programming, as a variety of services now offer consumers a competitive substitute for cable: access to an astonishing amount of TV programing a-la-carte-by-show directly on their television sets using devices like the Netflix Roku box and gaming consoles like the MS XBox 360 and the Sony Playstation 3.

Unfortunately, until FCC releases the apparently embargoed video competition report, the Court won't have access to what it would consider the most authoritative assessment of the state of competition in the video marketplace. Given the increasing competitiveness of that marketplace, denying the court access to that data can only help conceal the constitutional weakness of the FCC's outdated cap.

Posted by: Berin Szoka at August 30, 2008 2:52 PM

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