‘Comcast’ Ruling Meant Tough FCC Decision-Making, Aide Says

STANFORD, Calif. -- “A lot of back and forth, a lot of angst” resulted inside the FCC from dealing with the Comcast decision, said Sherrese Smith, aide to Chairman Julius Genachowski. Trying to keep regulating Internet access under Title I could create uncertainty for investors and consumers throughout long court fights, and “Congress probably did not intend for broadband to be under” a Title II common carrier framework, she said Friday. Genachowski’s “third way” calls for “reclassification under Title II” with forbearance on the “very onerous” obligations in the title, Smith said at the Legal Frontiers in Digital Media conference. Asked about coverage of wireless broadband, Smith said only, “I think we'll be working on that."

The FCC found itself in “a very difficult situation” on its Internet authority, Smith said. The actions of previous commissions limited its leeway in reaching Genachowski’s goal of preserving an “open Internet,” she said, and the current commission had to “play the cards” it was dealt.

Joe Waz, Comcast senior vice president of external affairs, called it “scary” to consider that a future FCC could reverse the proposed broad forbearance. He praised Genachowski for the sincerity of his effort but said commission policy “cannot be guided by good intentions alone.” It needs a “powerful legal theory” to survive and avoid the “slippery slope” to the broad regulation that the chairman said he seeks to prevent, he said.

It remains to be seen whether the FCC has the authority that the chairman says it has under Title II, Waz said. He said a 16-page memo awaits him on the legal strength of the proposal. Waz noted that it would put cable under Title II, in part, for the first time.

On the National Broadband Plan, Nexstar Broadcasting’s general counsel had kind words for the proposal to auction for wireless use any broadband spectrum offered by broadcasters. The plan’s approach of “voluntary cooperation with broadcasters in examining the use of that spectrum” is “really good news,” said Elizabeth Hammond. The NAB has given the proposal a distinctly cooler reception. The FCC is “too focused” on mobile broadband and should pay more attention to opportunities to use broadcast spectrum for wireless high-speed access, she said.

Concerning the commission’s set-top box proceedings, Waz called it “important” that, unlike in the CableCARD strategy, the FCC includes satellite and telco TV services along with cable. He said consumer electronics makers didn’t make equipment that used the CableCARDs that cable spent $1 billion on, and they need to be onboard, too. “All of our competitors have to play” and “the CE manufacturers have to play, too,” under rules giving no one an unfair advantage, Waz said.

Waz called himself more favorable to the plan than the rule of thumb offered by Blair Levin, who ran the FCC’s plan work, that everyone would like 80 percent. “I'm more in the 90-10 range,” Waz said.

In the media-ownership review that the FCC must do every four years, “for the first time” the commission will “take a step back and say, ‘Things have changed'” because of the Internet, Smith said. The FCC plans to go to Silicon Valley to seek out views on ownership policies, she said. The goal is to produce a report -- in line with both business and technical realities and with the aims of promoting diversity, competition and localism -- at the end of the first quarter of 2011, Smith said. Hammond said she hopes to see the commission take into account financial pressures that threaten broadcasters’ ability to produce local news.

Waz chided “the same activists” he said support taxation of spectrum, government training of journalists and vouchers for buying news as having “fought newspapers’ and broadcasters’ getting together” under common ownership. “The rules too often are based on a fondness for the old business models” rather than recognition of current realities and openness to new ones, he said. Waz prefaced his comments by saying, “I don’t have a dog in this hunt."

Communications lobbyists “really have a lot of plates spinning,” with activity by many federal offices, Waz said. “The short list is which agencies not to watch. Because the Internet is cross-cutting.” He said he has met concerning copyright with the White House intellectual property “czar,” the Patent and Trademark Office and the Department of Commerce, and the FCC also is looking at the issue. “Nothing is siloed in the Internet world anymore,” Waz said. “Clarity and consistency in messaging” to business gets more difficult for the government, and “anybody who’s played czar knows you need authority to play czar.” Smith said the FCC knows that it needs to be “thoughtful” in taking action that can affect other agencies, and the offices coordinate to keep from going in different directions.