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In Washington, sucking up to key regulators isn’t so much a business plan as an art form. So it was somewhat surprising when Kyle McSlarrow, the top lobbyist for the cable industry, recently dropped even the pretense of civility, publicly ripping into Kevin Martin, chairman of the Federal Communications Commission. “I find it almost impossible to believe that someone could be that biased,” McSlarrow, head of the National Cable and Telecommunications Association, told Broadcast and Cable magazine last week. He went on to suggest that Martin has, in the world of cable, all the clout of chopped liver. Over the course of the past year, Martin and the NCTA have sparred over a host of regulatory issues, ranging from exclusive contracts in apartment buildings to the cost of cable boxes. But the biggest fight of all came over a single statistic — “70/70.” The number is industry shorthand for an obscure provision of a 23-year-old law that opens the door to greater federal regulation of cable television when it is available in 70 percent of America’s homes and 70 percent of those it reaches pay for it. CROSSING THE THRESHOLD On Nov. 9, The New York Times ran a story announcing that at the FCC’s meeting later that month, Martin was poised to release data suggesting that the 70/70 threshold had been met, potentially subjecting the industry to FCC regulation of its content and forcing it to offer channels “a la carte” to customers. So in the days leading up to the meeting the industry launched a lobbying blitz meant to stop the 70/70 ruling — and undercut Martin’s position at the FCC. “Six major companies account for 97 percent of the industry,” says Andrew Schwartzman, president of the Media Access Project, a nonprofit legal shop that lobbied the FCC in favor of the 70/70 designation. “They can sit down in a room, make a decision, and act on it immediately.” That’s exactly what cable did. On the very day the Times story appeared, the NCTA started coordinating its members’ response. Three days later, during their standing Tuesday lunch at NCTA headquarters, industry lobbyists hashed out a strategy to stop Martin, and cable executives, who already had scheduled a Washington conference later that week, canceled their meetings to go lobby on the Hill.
Cable Industry Sends Strong Signals
Cable’s Advocates Lobbying Expenditures in first half of 2007
National Cable and Telecommunications Association $6,780,000
Comcast Corporation $3,870,000
Cox Communications $2,000,000
Time Warner $1,769,000
Charter Communications $350,000
Cablevision Systems Corporation $190,000
Source: Legal Times reporting and Lobbying Disclosure forms.

The association also had some outside help. One star of the group’s lobbying effort was Howard Symons, an attorney for Mintz Levin Cohn Ferris Glovsky and Popeo who helped draft the original legislation that created the 70/70 provision. He did $660,000 worth of business with the NCTA last year. Another prominent lobbyist was David Hobbs, who was the Bush administration’s lead liaison to Congress until he left to start the Hobbs Group at the end of the president’s first term. The NCTA and Comcast Corp. hired him almost immediately, and each pays him $160,000 a year. SKIN IN THE GAME But while the industry could have delegated much more of its work, it largely relied on the NCTA and the in-house lobbyists of its two biggest members, Comcast and Time Warner. For a matter so important to the companies, one lobbyist says, relying on surrogates would have been “embarrassing.” The NCTA had its approximately 10 lawyers working on preparing the industry’s case that Martin’s numbers were flawed and the 70/70 rule inapplicable. Pushing back on the other side were public interest groups such as Schwartzman’s Media Access Project, Consumers Union, and Free Press. The cable industry’s efforts, however, were much broader than that. During past legislative battles over issues such as media diversity, the industry’s lobbyists had forged alliances with minority groups that feared reductions in minority cable content. The NAACP and the National Association of Latino Elected Officials joined the NCTA in attacking Martin, greatly aiding industry PR efforts. And given that the two swing votes on the commission, Deborah Tate and Jonathan Adelstein, are widely thought to be interested in another nomination to the FCC, a little Hill pressure couldn’t hurt. All told, the industry lined up 24 members of the House Energy and Commerce Committee to condemn Martin. Opposition on the Hill from consumer groups and the telecoms (the cable companies’ traditional opponents) was comparatively light. “Nobody else had skin in the game,” the lobbyist says. On Nov. 27, by a 3-2 vote, the commissioners sided with the cable industry, delaying consideration of the 70/70 provision until next year. A key factor in swinging Tate and Adelstein’s votes, says a cable lobbyist, was that the commissioners were concerned that Martin’s data was biased against the cable companies. That shouldn’t be a problem anymore: For the next hearing in 2008, the FCC is allowing cable companies to compile market penetration data from its own customer records. Any bets on how that turns out?

Jeff Horwitz can be contacted at [email protected].

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