January 14, 2000

Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, CS Docket No. 99-230

I must respectfully dissent from the 1999 "Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming."

As I said last year, I do not believe that the Competition Report, in its traditional form, fulfills our duties under the Communications Act. See Dissenting Statement of Commissioner Harold Furchtgott-Roth, Annual Assessment of Competition in Markets for the Delivery of Video Programming, 13 FCC Rcd 24284 (1998).

Again, instead of examining the state of competition "in the market for the delivery of video programming," 47 USC section 628(g), as the statute prescribes, the Report artificially limits its analysis to the delivery of "multichannel video programming." There are, of course, many forms of video programming that do not come bundled in channels but that are still part of the general video distribution market. Unfortunately, the Report does not take full account of these very real forces in its investigation of competition. In focusing primarily on what is a submarket of video programming -- the "multichannel" distribution market -- rather than the entire market, the report does not fully meet the requirements of the statute.

The language of the statute also makes clear that Congress considered the delivery of video programming to constitute a single "market," see id. section 628(g) (referring to "the market" for video programming delivery), not a conglomeration of "markets," as the very title of this Report suggests in speaking of "[m]arkets" for the delivery of video programming.

We should, as a plain statutory matter, have considered the delivery of video programming a single market in this Report. Because I believe the definition of the relevant market to be in error, I cannot sign on the ensuing analysis of that market.

In closing, I comment on the significance of cable market share, a number that traditionally receives top billing in these reports. See supra at para. 5. The fact that a large number of MVPD subscribers opt for cable service is not in itself a reflection of a lack of competition in the market for video programming. Assuming that subscribers have choices for their source of video programming, as I think they clearly do, their selection of cable is not indicative of anything harmful. The objective here should not be to drive down cable's market share, but rather to analyze the options available to consumers.