There is much to commend in this Order. I join in the decisions to change the basis of the limit from homes passed to actual subscribers; to include non-cable MVPDs in the limit calculation; to repeal the minority-control allowance; and to retain the stay of these rules pending resolution of related litigation. See Parts IV-V, VII-VIII. I must dissent, however, the Commission's refusal to raise the limit itself from the current rate of 30%. See Part VI.

The Level of The Horizontal Ownership Limit

I would have raised significantly the relevant rate for cable ownership past the 30% that the Commission today maintains. This rate has been in effect since 1993 and, as the Commission itself has documented in any number of proceedings, the increase in competition in the multichannel video programming market -- assuming that is even the right market, as opposed to all video programmers, the actual terminology of the statute -- has been at least substantial, if not explosive. The statute directs us to take account of these changes. See 613(f)(2)(E) (Commission should "reflect the dynamic nature of the communications marketplace").

This Order even acknowledges these intervening competitive developments in the context of the decisions to change the limit calculation. See supra at paras. 28-30. I do not think we can take notice of increased competition for purposes of those ancillary decisions but close our eyes to that same fact in the context of the limit itself. Increased competition either exists or it does not, and the fact of that competition is logically relevant to the calculation of the limit and the limit itself.

Even if one were not willing to admit increased competition since 1993, changes within the cable industry itself -- most significantly, the expansion of channels due to upgrades -- mitigate a cable operator's potential for market power.

Furthermore, the Commission just a few months ago concluded that growth in the communications industry warranted loosening of the broadcast ownership rules. See generally Review of the Commission's Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, MM Docket Nos. 91-221, 87-8 (rel. Aug. 6, 1999). I would think that some deregulation -- in particular, revising upward the section 11(c) cap -- would have been equally appropriate for the cable industry.

In the attribution Report and Order adopted today, the Commission concludes that "the cable industry's ownership and management structures do not in any relevant way differ from those of the broadcast industry." Review of the Commission's Cable Attribution Rules, CS Docket No. 98-82, at para. 11 (adopted Oct. 8, 1999). While I disagree with that statement (the many differences between these particular industries, and thus their ownership and management, are patent, at least to me), I note it in order to highlight the incongruity of the Commission's reasoning in these related decisions. Apparently, the industries are similar enough that we should use the same attribution rules, but when it comes to deregulation, they should not be treated equally. This makes little sense to me.

Part of what contributes to the Commission's view that the limit cannot go any higher than 30% is a fundamental misunderstanding of the premise of section 613(f). The Commission approaches the statute as if it were the "Reasonable Guarantee of Success for Cable Networks Act." Hence, its analysis of the appropriate percentage limit starts with the number of subscribers it takes to launch a new network.

But the Act is not meant affirmatively to ensure that new cable networks have some minimum chance of success in the marketplace. Rather, its plain language reflects an intent to prevent cable operators from "unfair[ly] imped[ing] . . . the flow of video programming from the programmer to the consumer." 47 U.S.C. section 613(f)(2)(A). A cable network can fail to get off the ground for infinite reasons other than the exercise of monopsony power by cable operators. The statute is not meant to create a minimum chance of success for one group, but to prevent specific anticompetitive behavior by a different group. We thus should be focusing on what it means for a cable operator or operators to "unfairly impede" the flow of programming, but this Order never does that.

Moreover, the "flow" with which the statute concerns itself is of "video programming," not just cable network or even MVPD programming. "Video programming" is a statutorily defined term, see id. section 611(20) ("'video programming' means programming provided by, or generally considered comparable to programming provided by, a television broadcast station"), which includes vastly more than just cable network programming. When many paths exist for distributing video programming to consumers -- which there are -- cable operators' ability to impede anything is drastically undermined.

Finally, the constitutional concerns raised by the statute -- grave enough that a federal judge has deemed it violative of the First Amendment, see Daniels Cablevision v. United States, 835 F. Supp. 1 (D.D.C. 1993) -- also mitigate in favor of a more generous approach to the limit in order to mitigate the direct burdens on speech imposed by these regulations. A higher subscriber rate, while it might not solve the First Amendment problem, would at least alleviate some of the burden created by the limit.⁽¹⁾ But these rules impose as heavy a burden on speech as the previous ones.

The Calculation Of The Horizontal Ownership Limit

The foregoing said, I do concur in the separate decisions to base the limit on actual subscribers rather than homes passed, see supra Part IV, and to include non-cable MVPDs in the calculus, see id. Part V. Those decisions make common sense, in that they acknowledge the expanded range and intensity of competition to cable. They also provide some effective relief to cable operators and allow them some room to grow as the MVPD market further develops.

Ultimately, however, the cleaner and more straightforward approach would have been to simply raise the limit itself. Moreover, I would have increased the limit to a greater extent than do these changes to the formula. I support them, however, to the extent they provide some benefit to regulated entities.

The Minority Control Allowance

I also concur in the decision to repeal the minority control allowance. See id. Part VII. As I noted in the Notice of Proposed Rulemaking, this facially race-based provision is presumptively violative of the Equal Protection Clause. See Separate Statement of Commissioner Harold W. Furchtgott-Roth, Second Memorandum Opinion and Order on Reconsideration and Further Notice of Proposed Rulemaking, In re Implementation of Section 11(c) of the Cable Television Consumer Protection and Competition Act of 1992: Horizontal Limits (rel. June 26, 1998) (discussing application of strict scrutiny to the allowance). Although the Commission chooses to repeal these regulations for reasons of practicality, it makes no attempt to defend the constitutionality of this rigid numerical preference and its supposed connection to programming content in light of either the record in this proceeding or relevant judicial precedent. That is probably wise, because the task is near impossible, legally speaking.⁽²⁾

Administrative Stay Of The Rules

Finally, I concur in the decision to continue the stay of these rules pending resolution of the related litigation in the Court of Appeals for the D.C. Circuit. See supra Part VIII.

2. Still on the Commission's books, however, is the analog to the minority-control allowance in the channel occupancy context. That regulation allows a cable operator to commit "two additional channels or up to 45 percent of its channel capacity, whichever is greater," to affiliated programming services if those services are minority-controlled. 47 C.F.R. section 76.504(c). This regulation suffers from the very same infirmities under Adarand as the horizontal ownership minority-control allowance. It should also be repealed.