Subsection (g) of Section 612 states that when cable systems with 36 channels or more reach 70% of U.S. households and 70% of households "passed" by these cable systems actually subscribe to that service, the FCC "may promulgate any additional rules necessary to provide a diversity of information sources." The FCC previously had determined that the first prong of the so-called "70/70" test had been met. If the FCC determines that the test has been met, the Commission will then have the authority to "promulgate any additional rules necessary to provide a diversity of information sources." The House Report seems to suggest that Subsection 612(g) was intended to grant the FCC power to promulgate such rules in the event the 70/70 test was met. Thus, subsection 612(g) provides a mechanism to assure there is adequate flexibility to develop new rules and procedures with respect to the use of leased access channels as the cable industry develops and serves more citizens in the future. In 1992, however, Congress enacted the Cable Television Consumer Protection Act, which amended Section 612 to give the FCC more authority to regulate leased access. In other words, all of the powers Congress, in the House Report, had suggested would be conferred upon the FCC under 612(g) were granted expressly to the Commission by the 1992 Cable Act revisions of Section 612. The scope of the FCC's authority under 612(g), therefore, remains an open question. Proponents of broad authority under 612(g) argue that if Congress granted the FCC the power to promulgate "any" rule to promote a diversity of information sources, Congress meant to do exactly as it said and did not mean to restrict the FCC's powers to leased access. Judicial Review of the Scope of Subsection 612(g)

Judicial review of the scope of the FCC's power to promulgate rules under 612(g) would likely begin with a determination of whether or not the court is required to defer to the agency's interpretation of its authority.
The Federal Communications Commission (FCC or Commission) recently issued a report requesting data to aid in determining whether the so-called "70/70" test for cable market penetration has been met. Under Section 612(g) of the Cable Communications Policy Act of 1984, when 70% of households in the United States are able to subscribe to cable services of 36 channels or more and 70% of those households actually subscribe to such services, the FCC will be empowered to "promulgate any additional rules necessary to provide a diversity of information sources." A House Report issued when the provision was enacted indicated that 612(g) was intended to provide "a mechanism to assure there is adequate flexibility to develop new rules and procedures with respect to the use of leased access channels as the cable industry develops and serves more citizens in the future." Subsequent amendments to Section 612 granted the FCC greater power to regulate leased access to cable systems. In fact, all of the powers Congress, in the House Report, had suggested would be conferred upon the FCC under 612(g) were granted expressly to the Commission by the subsequent revisions of Section 612. Congress did not, however, repeal Subsection 612(g). The scope of the FCC's authority under 612(g), therefore, remained an open question.
The FCC has yet to determine whether the level of market penetration required to trigger 612(g) has been met. Consequently, neither the courts nor the FCC has interpreted the extent of the FCC's authority to promulgate new regulations that would "provide a diversity of information sources." Two main arguments have been made regarding the scope of the Commission's power under the 70/70 provision. The first argument would grant the FCC broad authority to promulgate any rule that encourages a "diversity of information sources." The second argument would grant the FCC more narrow authority to promulgate new rules relating to leased access of cable systems by unaffiliated persons. This report will be updated as events warrant.