The US Court of Appeals for the District of Columbia Circuit has overturned an FCC decision to impose a cap on cable companies – barring them from serving more than 30% of cable customers nationwide. The ruling reaffirms a 2001 court decision that rejected the same cap.

In vacating the FCC decision, the court found:

• The Commission had failed to demonstrate that allowing a cable operator to serve more than 30% of all cable subscribers would threaten to reduce either competition or diversity in programming
• The record is replete with evidence of ever increasing competition among video providers
• Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act
• Cable operators no longer have the bottleneck power over programming that concerned the Congress in 1992
• Over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers.

Citing, “overwhelming evidence concerning ‘the dynamic nature of the communications marketplace,’ and the entry of new competitors at both the programming and the distribution levels”, the court found the FCC’s decision to be arbitrary and capricious.

In response, FCC Commissioner Robert McDowell issued the following statement:

It was clear in December 2007, when I dissented from the FCC decision to once again impose a 30 percent national cap on cable system ownership, that the effort to re-justify the very same cap that the D.C. Circuit first struck down in 2001 was even more vulnerable to court challenge the second time around.  Despite the Commission staff’s best efforts to provide post hoc empirical support for the chosen outcome, the court recognized that the 2007 analysis’ aging data and questionable assumptions sat oddly against the facts about new – and successful – competitors to cable systems in the multichannel video marketplace.  It should go without saying that, in the future, outcomes in our proceedings should be driven by the facts and law, rather than the other way around.

Regular readers of Cable Tech Talk may remember an exchange between Verizon’s Tom Tauke and NCTA’s Kyle McSlarrow that took place last June.  At issue was an FCC decision into allegations that Verizon had violated retention marketing restrictions and actively tried to prevent customers from leaving only after the customer had put in a request to terminate their service and move their number to cable.

The phone company maintains custody of the number you own. When Verizon gets a request to terminate service and transfer your number, they have four days in which they must comply.  This is known as the porting interval.  Our argument then, as now, was simple.  Verizon has every right to offer its customers whatever package it sees fit to offer 361 days out of the year.  They should not, however, be allowed to use advance notice of customer defection as leverage against their competitors.

The FCC agreed, and found that Verizon had been improperly using the porting interval for the purposes of retention marketing.  Verizon, unhappy with the FCC’s decision, filed suit in the US Court of Appeals for the DC Circuit in an attempt to get the FCC decision overturned.

Today, the court reaffirmed the FCC decision that Verizon was violating federal privacy rights by illegally using the number porting window for last gasp offers.

The ruling is a boost for consumers who are already saving billions of dollars each year because they have switched to cable’s digital phone service.

Once you have decided to leave a provider, they should not impede your ability to do so.  This decision is good for competition and will ensure consumers can change local telephone providers without undue harassment by the incumbent provider. NCTA also favors reducing the porting interval to two days to further expedite consumer requests.

For our part, we look forward to the continued competition for your telephone business.