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Progress Snapshot
Release 4.11 May 2008
Where is the FCC’s
Annual
Video Competition Report?
Progress SnapshotRelease 4.11 May 2008by Barbara Esbin and Adam Thierer
The Federal Communications Commission (FCC) is required by law—the 1992Cable Act, to be exact—to produce an “Annual Assessment of the Status of Competitionin the Market for the Delivery of Video Programming,” otherwise known as the “AnnualVideo Competition Report.”
These annual reports are eagerly awaited not merely bylawmakers but everyone who monitors developments in the video marketplace. Thereports are particularly important because they provide a goldmine of data andinformation about industry trends.Twelve installments of the Annual Video Competition Report have beenproduced since the requirement took effect, but the 13
th
annual report has inexplicablybeen stuck in regulatory limbo for almost two years. This begs the question: Where isthe FCC’s annual video competition report?The 12
th
Report was published in March 2006 and summarized 2005 data. Yet itremains the most recent report from the FCC regarding data and developments in thisfast-moving field. The FCC did, however,
adopt
the 13
th
Of course, there is adifference between
adopting
and
releasing
a report. Despite voting to approve thereport, the Commission has still not
released
the report to the public or to Congress, asthey are required to do by law.It is noteworthy that the Notice of Inquiry launching the first annual report, whichdetermined from scratch the scope of the report and type of information that would berequired, was adopted and released on the same day, May 19, 1994, and a 261paragraph report was adopted four months later, on Sept. 19, 1994 and released a
*
Barbara Esbin is a senior fellow and director of the Center for Communications and Competition Policyat The Progress & Freedom Foundation. Adam Thierer is a senior fellow and director of the Center forDigital Media Freedom at The Progress & Freedom Foundation. The views expressed in this report aretheir own, and are not necessarily the views of the PFF board, fellows or staff.
1
See
Communications Act of 1934 § 628(g), 47 U.S.C. § 548(g).
2
“FCC Adopts 13
th
Annual Report to Congress on Video Competition and Notice of Inquiry for the 14
th
Annual Report,” Federal Communications Commission,
Press Release,
1444 EYE STREET, NW
SUITE 500
WASHINGTON, D.C. 20005
PHONE: 202-289-8928FACSIMILE: 202-289-6079
E-MAIL: mail@pff.org
INTERNET: http://www.pff.org
mere nine days later.
Until recently, and with few exceptions, the FCC has consistentlyreleased the NOI initiating its annual assessment by about June of each year, and anannual report some 6-8 months later.
For the first ten years, the annual report wasnever released later than four weeks into the following year; the 13
th
annual report(2006 report) is now more than 14 months later than that.
A quick perusal of the FCC’swebsite indicates that the basic form, content andinformation sought in these annualassessment items have changed little since 1994.
Last year, according to the Nov. 27
th
News release, the NOI for the 14
th
annual report (2007 report) was adopted on thesame day as the 13
th
annual report. And, like the 13
th
annual report, the NOI too, is“missing in action.” What possible justification could exist for failure to release a noticeof inquiry requesting essentially the same market data for the 14
th
time?As Commissioner Robert McDowell pointed out in his partial dissent to theissuance of the reportlast November, the report was already “about nine monthsoverdue to Congress.”
And now, roughly another six months have passed since thatvote occurred but the agency has still not produced the Report. If the Commission feltcomfortable voting on the report last November, one wonders why they could not havealso released it to Congress and the public at the same time, or at least shortlythereafter. Worse yet, when the report comes out, it will reflect the state of the videomarketplace as of June 30, 2006, which is when the last reporting cycle ended. Thismeans the Report is
well over a year past due and that when it is finally released, the data will be almost two years old
.
3
Implementation of Section 19 of the Cable Television Consumer Protection and Competition Act of 1992 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming
,Notice of Inquiry, 9 FCC Rcd 2896 (1994);
Implementation of Section 19 of the Cable Television Consumer Protection and Competition Act of 1992 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming
, First Report, 9 FCC Rcd 7442 (1994).
4
The Commission’s previous notices of inquiry and reports appear at:
Implementation of Section 19 of the 1992 Cable Act
(
Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming
),
1994 Report
, 9 FCC Rcd 7442 (1994),
1994 NOI
, 9 FCC Rcd 2896 (1994);
1995 Report
, 11 FCC Rcd 2060 (1996);
1995 NOI
, 10 FCC Rcd 7805 (1995);
1996 Report
, 12 FCC Rcd4358 (1997),
1996 NOI
, 11 FCC Rcd7413 (1996);
1997
Report
, 13 FCC Rcd 1034 (1998),
1997 NOI
,12 FCC Rcd 7829 (1999);
1998 Report
, 13 FCC Rcd 24284 (1998),
1998 NOI
, 13 FCC Rcd 13044(1999);
1999 Report
, 15 FCC Rcd 978 (2000),
1999 NOI
, 14 FCC Rcd 9617 (1999);
2000 Report
, 16FCC Rcd 6005 (2001),
2000 NOI
, 15 FCC Rcd 13563 (2000);
2001 Report
, 17 FCC Rcd 1244 (2002),
2001 NOI
, 16 FCC Rcd 13330 (2001);
2002 Report
, 17 FCC Rcd 26901 (2002),
2002 NOI
, 17 FCC Rcd11579 (2002);
2003 Report
, 19 FCC Rcd 1606 (2004),
2003 NOI
, 18 FCC Rcd 16042 (2003);
2004 Report
, 20 FCC Rcd 2755 (2005),
2001 NOI
, 19 FCC Rcd 10909 (2004);
2005 Report
, 21 FCC Rcd38776 (2005),
2005 NOI
, 20 FCC Rcd 14177 (2005);
2006 Report
, adopted Nov. 27, 2007,http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278454A1.pdf;
2006 NOI
, MB Docket No. 06-189, News releasehttp://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-267863A1.pdf(adoptedOct. 12, 2006, released Oct. 20, 2006)(it does not appear that the NOI has ever been published in theFCC Record).
5
A comparison of the adoption/release intervals for the first twelve annual reports reveals the following:the average adoption/release interval for the NOI initiating each survey is about 5 days; the shortestinterval was same day adoption and release in 1994; and the longest interval was 20 days in 1995.Again excluding the 13
th
annual report, the average adoption/release interval for the reports is about 15days; the shortest interval was 4 days in 1995; and the longest interval was about 31 days in 1996.
6
7
2
Although the motivations or causes for delay of this report are impossible toknow, it is difficult to avoid speculating that one cause of delay in releasing the report isits failure to provide the critical empirical support for FCC Chairman Kevin Martin’s“70/70” plan for expanding the Commission’s powers over the cable industry, a plan that was widely discussed in the weeks leading up to the report’s adoption last November.
The delay becomes all the more puzzling when one stops to think about what is atissue: this is an “annual assessment of the status of competition in the delivery of videoprogramming” required to be delivered to Congress under the Act. Unlike many of thepolicy or rulemaking items routinely held up for “post-adoption” edits, this item isprimarily a compilation of data, which either exists in the form adopted by vote of the fullCommission, or does not exist. A six-month post-adoption delay in release of such areport must be a record-setter.Importantly, however, when the FCC voted on the latest annual report at thatNovember meeting, the agency did released a handful of findings from the report, albeitwithout much fanfare. These findings are quite encouraging. For example, thesummary noted that the overall number of national programming networks available inAmerica now stands at 565 channels. That is up from just 70 channels in 1990, anastonishing increase in program choices. Importantly, the FCC’s summary of the
8
Stephen Labaton, “FCC Planning Rules to Open Cable Market,”
New York Times
, November 10, 2007,www.nytimes.com/2007/11/10/washington/10cable.html?_r=1&oref=slogin&pagewanted=print
;
, November 13, 2007,www.latimes.com/business/la-fi-cable13nov13,1,5261186.story;William Triplett, “FCC Mulls Cable TV Intervention,”
Variety, November 19, 2007,
3
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