Outgoing Federal Communications Commission chair Kevin Martin got his last licks in on the cable industry on Monday, proposing a slew of fines against companies that the agency says migrate analog channels to digital tiers, forcing consumers to buy digital set top boxes or more expensive packages. The Commission wants to fine Comcast, Bright House, Cox, Cablevision and others for not fully responding to Letters of Inquiry asking for details on the practice, or for doing the analog to digital channel switcheroo without giving consumers proper notice.

"The Commission has received nearly 600 complaints from cable subscribers around the country who one day were watching their favorite channel and then the next day were unable to access it," Martin wrote in a letter to Senators Jay Rockefeller (D-WV) and Kay Bailey Hutchinson (R-TX) announcing the proposed penalties. "In short, cable customers have been receiving less from the cable companies but paying the same price or, in some cases, more."

Prominent among those six hundred gripes was an October 29 letter from the Consumers Union sent to Rockefeller's Committee on Commerce, Science, and Transportation, which got the ball rolling on this move. The complaint summarized a survey conducted by CR in October of the cable-only television market. A big chunk of those queried said they're losing channels, the group reported.

"We fear large cable companies, like Comcast, have been adding to their bottom-line by inappropriately reaching into the pockets of their subscribers," CR's letter charged. "With the DTV transition quickly approaching, consumer confusion in the television programming marketplace is at its peak."

The FCC launched its probe of the cable providers the next day. The Commission's LOIs asked for documentation on channel transfers, consumer complaints, notices to consumers on the changes, and other data.

Gone fishing?



Not surprisingly, the cable industry has been none too pleased about any of this. The National Cable and Telecommunications Association quickly cried foul, complaining on November 12 that the FCC asked for an enormous amount of information in very little time (14 days). The trade group's statement warned that the letters violated the Paperwork Reduction Act and should really be understood as a Notice of Inquiry—essentially a proceeding requiring authorization of the full Commission.

"A broad fishing expedition involving substantially an entire industry is not a legitimate investigation but an information collection that is masquerading as an investigation," the NCTA statement concluded.

That protest clearly hasn't fazed Kevin Scourge-of-Cable Martin, who is gone from the agency as of January 20. Bright House's Notice of Apparent Liability proposes whacking the company to the tune of $25,000, charging that many of its responses to agency questions were "nonresponsive or incomplete." The same sum is being proposed for Cablevision, as well as separate fines to various regional Cablevision systems for converting analog channels to digital without giving consumers proper notice. In the case of Cablevision's Darien, Connecticut service, a consumer complained that the changes effectively cut off access to one-fifth of the programming he or she received from the firm's Family Basic cable tv package.

Goodbye and good luck

Martin's letter to Rockefeller and Hutchinson also summarizes his perspective on the cable industry. The price for every other service that the FCC regulates has gone down, Martin charges. Wireless down 85 percent, long distance calling by 50 percent, and international calling by almost 90 percent. But not cable, whose prices the FCC's now ex-chair says have doubled since 1992.

"And now, when cable operators migrate analog channels to a digital tier, consumers are forced to pay more if they wish to continue watching the same channels," or pay the same sum for less, Martin writes. "This is not the type of consumer choice that the Communications Act envisions. The Commission has taken this issue seriously, and I hope that Congress will as well."

Ars checked in with the NCTA about the FCC's latest move. The group has no comment.