Dingell’s FCC Inquiry in High Gear

Washington— An exhaustive bipartisan House investigation of Federal Communications Commission chairman Kevin Martin includes a demand for all records related to a pair of Martin moves designed to escalate regulation of the cable industry.

The probe, headed by House Energy and Commerce Committee chairman John Dingell, kicked into high gear last Wednesday with release of a lengthy letter to Martin informing him of the specific nature of the investigation that opened in January.

The investigation is about “allegations from current and former FCC employees and other sources, which we have reason to believe are credible.”

“These allegations,” the letter stated, “relate to management practices that may adversely affect the [FCC’s] ability both to discharge effectively its statutory duties and to guard against waste, fraud, and abuse.”

FCC spokesperson Mary Diamond said: “We look forward to continuing to cooperate with the committee.”

Dingell’s probe is wide ranging. It includes a demand for “all e-mail communication, memoranda, electronic and handwritten notes, records of telephone conversations, talking points, and meeting schedules” related to Martin’s 2005 decision to revise a 2004 report on the a la carte sale of cable programming.

The 2004 report, prepared at the request of members of Congress, concluded that a la carte mandates were a bad idea. Without seeking input from the public, Martin ordered staff to revise the conclusions, which he announced in November 2005. The revised report was released in February 2006. The first report was prepared while Michael Powell was FCC chairman.

Dingell’s letter called for background information on “the decision to discard or change the conclusions reached in the Nov. 18, 2004, report prepared by Media Bureau staff, titled the Report on the Packaging and Sale of Video Programming Services to the Public, the decision to direct some FCC staff to prepare a Further Report on the same matter, the identity of those staff that did prepare the Further Report and the decisions concerning peer review of the Further Report.”

Dingell’s letter demanded the same internal FCC records related to Martin’s ill-fated attempt last November to force the agency to conclude that cable operator penetration had generally exceeded 70% of homes, triggering a provision in cable law — the so-called 70/70 test — that Martin said would equip the FCC with the authority to engage in much closer regulatory oversight of cable.

Martin was forced to back down when it turned he had relied on only one source of information — Television & Cable Factbook, published annually by Warren Communications News — to support his view and suppressed or discarded other data that contradicted his preferred data.

In his letter, Dingell demanded to see “the FCC’s analysis of the so-called 70/70 test, including all communications related to the 70/70 test, the decision not to include or rely upon data used in previous reports other than the Warren Communications data, including some of the FCC’s own data, such as from FCC Form 325, comments provided by Warren on use of the Warren data and the way it was compiled, and any directive or instructions given to FCC employees concerning staff’s ability to discuss with any of the four Commissioners or their staffs the existence or substance of other data sources upon which analysis of the 70/70 test might have been made.”

Dingell’s FCC probe has bipartisan support as Rep. Joe Barton (Texas), the committee’s most senior Republican, and Rep. John Shimkus (Ill.), the ranking GOP member on the Oversight and Investigations Subcommittee, signed Wednesday’s letter to Martin.