What happens when a large and powerful US industry decides that it doesn't like a law? Simple: it works to change that law. AT&T has had notable success this year at pushing legislation for state governments to bypass local controls and give the company a statewide video franchise. Not to be left out, cable has mounted a lobbying offensive of its own in the wake of the FCC's attempt to regulate the industry. The effort is now paying fruit in Washington.

Late last week, Rep. Marsha Blackburn (R-TN) introduced HR4307 (PDF), the "Consumer Freedom of Choice in Cable Act." It's not clear why this name was chosen, since the bill's main text is under fifty words long and simply repeals the 70/70 rule so loathed by cable. Does that make you, the consumer, feel free to choose?

The 70/70 rule came out of a 1984 cable law that largely deregulated the industry. That law said that the FCC could exert broad authority over the cable companies should they ever pass more than 70 percent of all US households, and should more than 70 percent of those households actually subscribe to cable. No one doubts that the first threshold has been reached, but there is substantial uncertainty about the second one.



Marsha Blackburn

Despite that, FCC Chairman Kevin Martin pushed for a recent finding from the Commission that both thresholds had been reached. He hoped to use such a finding to gain greater control over the cable industry, probably with the goal of forcing à la carte rules on an industry not disposed to accept them.

Martin's plan backfired in late November when he couldn't muster up the support of other commissioners. His plan did stir the cable industry to action, though. The "Statistic of the Week" on the National Cable & Telecommunications Association web site at the moment, for instance, is "52.5 percent"—cable's claimed penetration rate in the US.

"The Commission's time and energy would be better spent on helping the country get ready for the digital transition or on working cooperatively with industries like ours to further the rollout of broadband to all Americans," said the NCTA at the time, "rather than fruitlessly searching for opportunities to second-guess a communications marketplace that is characterized by competition, innovation and investment."

"Competition" and "innovation" might not be the words most consumers would think of when they think of their cable provider, but the larger point about government regulation ("It's bad!") apparently resonated with Rep. Blackburn. According to the Center for Responsive Politics, Blackburn has also received $21,000 from the NCTA over her career, making the group her fifth largest contributer of all time.

Rep. Blackburn's bill would remove subsection (g) from USC 47 sec. 532. In other words, it would excise the 70/70 test and keep cable clear of the FCC's clutches. It is currently under consideration by the House Committee on Energy and Commerce.