McSlarrow said tighter regulation is not warranted by the marketplace and was not requested by Congress. He promised litigation if the FCC adopts restrictions his association opposes.

The finding is contained in the latest iteration of the agency's video competition report, to be released at its late-November public meeting.

The FCC concludes that cable is available to more than 70 percent of homes and that more than 70 percent of households subscribe to it. The 1984 Cable Act permits the agency to promote a "diversity of information sources" if the "70/70" threshold is reached.

The statistics are based on "outside resources and data services that the commission relies upon, and so it wasn't just our finding," Martin told reporters the day prior to McSlarrow’s comments.

NCTA countered that only the first prong has been met. "Part of the problem here is that we don't know how they arrived" at their conclusion, McSlarrow said, complaining that the agency has not circulated proposed rules subject to public comment.

Martin will use the determination to fuel new regulatory measures to be considered this month, sources said. Those include a proposal to reduce rates that cable systems charge independent programmers purchasing capacity on leased access channels and stricter program-access rules banning exclusive content arrangements.

Martin, meanwhile, is circulating a plan to reinstate the cable cap, which prohibits systems from commanding more than 30 percent of the multi-channel video marketplace.

In 2001, the U.S. Circuit Court of Appeals for the District of Columbia remanded the limit to the FCC, saying further justification was needed. Martin now says he has the evidence to restore it. It is unclear when the agency would vote on that item.

Several sources suggested that Martin is promoting cable regulation to counterbalance criticism from Congress, the public and watchdogs over his effort to relax media-ownership rules. "It certainly is a part of his overall calculations," said David Kaut, a telecom analyst at the investment firm Stifel Nicolaus.

In a Wednesday letter to the FCC, NCTA noted that the agency concluded last year that cable systems had only reached 56 percent market penetration. The association cited three separate firms that assess cable below the 70 percent mark.

Even if the threshold were met, NCTA argues that Congress intended for the 70/70 rule only to impact leased access channels. The industry group also complained that the rule is outdated because it stems from a law that predates the Internet and the entry of telecom companies into the video market. Direct-broadcast satellite, now a major competitor, also was in its infancy then.