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FCC Chief Still Standing, if on Shifting Ground

By Frank Ahrens and Jeffrey H. Birnbaum
Washington Post Staff Writers
Thursday, November 29, 2007

Federal Communications Commission Chairman Kevin J. Martin's ongoing fight with Big Cable has left him bloodied but still standing, say FCC officials, industry executives and public interest groups, and he may now spend the remainder of his tenure with fewer allies.

Martin has led the FCC since 2005. A Republican whose wife has worked in the White House, Martin could typically count on the support of the commission's other two Republicans while winning some battles with the commission's two Democrats.

But that changed over several weeks leading to a late-night, particularly contentious Tuesday meeting, following a cable industry lobbying effort and dissent within the commission.

The issue was cable regulation. In particular, Martin has taken positions against the cable industry, including in attempts to regulate violent content.

Before Tuesday's meeting, Martin tried to convince his fellow commissioners that the cable industry had grown big enough to warrant tough new rules, which the industry strongly opposed. The chairman used as his proof a single study, from an independent research company called Warren Communications, estimating the number of U.S. cable subscribers.

But other commissioners doubted whether the study was complete and even accused Martin of hiding evidence favorable to the cable industry.

The turning point came when Republican commissioner Deborah Taylor Tate, Martin's most reliable ally on the commission, bucked the chairman, saying at the meeting that his proposal "focuses heavily on the findings of one source, rather than the numerous sources our reports have included in the past." Tate, who declined to be interviewed for this article, privately expressed outrage that she and other commissioners had to ask Martin for additional data on cable subscribers, according to a source close to her. Republican commissioner Robert McDowell also opposed Martin.

"The attempt to withhold critical FCC data is certainly raising a lot of eyebrows around town," Democratic commissioner Jonathan S. Adelstein said.

As a result of the rebellion, Martin backed down on the study, the commission passed a weaker set of cable regulations and the industry ended up with a big win, possibly sapping Martin of some clout. Now, before he can try to push through his next big initiative -- a relaxation of a key rule that caps local media concentration -- Martin faces a House committee next week and then a Senate committee prepared to ask tough questions about how he runs his agency.

In addition to commissioners Tate and Adelstein, key Republican lawmakers have expressed concern that Martin does not operate in the open, saying he does not allow the public enough time to comment on proposals and does not include fellow commissioners in discussions.

"It's hard to know what the team's supposed to do when the quarterback doesn't call huddles or plays," said one FCC official who spoke on the condition of anonymity because of continued contact with Martin.

Yesterday, Martin refuted his detractors, saying he works to include his fellow commissioners and build consensus. As for the controversial Warren data, Martin said he included only that data because he thought it was the most reliable. He said he omitted other studies that showed cable had fewer subscribers than the Warren study as well as ones that showed it had more.

"Of course, in hindsight, I would have probably proposed something else because what I proposed didn't garner the support of a majority of the commission," Martin said in an interview. He reiterated that he has no agenda against the cable industry.

"Tomorrow is another issue and another battle," said Martin, who likely has a little more than a year left on the job, as FCC chairmen typically resign when a new administration enters the White House.

Bruises are nothing new to Martin or FCC chairmen. He was blistered by Republicans over his handling of a wireless spectrum proposal last summer and during a battle over local phone deregulation several years ago. He has endured public scoldings by fellow commissioners Adelstein and Michael J. Copps, a Democrat. Likewise, firestorms over indecency fines and media ownership dogged previous FCC chair Michael K. Powell, as a controversy over unlicensed radio stations did William E. Kennard before him.

Martin's proposed cable crackdown was also undermined by a fast and concerted lobbying effort.

The National Cable & Telecommunication Association, the industry's trade association, has been scrambling for two weeks to defeat Martin's proposal.

The biggest effort came Nov. 15 when the NCTA board was in town for a regular meeting. Leaders of the association took the unusual step of truncating the proceedings to one breakfast meeting and then sent the cable executives out to lobby official Washington against Martin's initiatives. The organization rented at least four cars to transport them.

Executives from the likes of Comcast, Time Warner Cable and Charter Communications met with all of the FCC commissioners except Martin. They also met with about 30 lawmakers on Capitol Hill, most of them from the commerce committees that have jurisdiction over the FCC. The lawmakers included John Dingell (D-Mich.), Joe L. Barton (R-Tex.) and Edward J. Markey (D-Mass.) in the House, and Daniel K. Inouye (D-Hawaii), Ted Stevens (R-Alaska) and Trent Lott (R-Miss.) in the Senate.

Lobbyists for the NCTA also put on a full-court press and pressured the Republican FCC commissioners by generating letters from Republican lawmakers. One letter was signed by three Republicans on the House Commerce Committee. The second had four Republican senators. Ten House Democrats led by Rep. Anna G. Eshoo (D-Calif.) also wrote the FCC at the urging of the NCTA to say that the proposed rule would hurt diversity on cable.

"It's a textbook example of how a sophisticated trade association can mobilize resources on short notice and stave off a major defeat," said Andrew Schwartzman, president of the Media Access Project, which opposed the cable industry position.

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