Assessing the FCC's Capitol Concerns

Commissioner McDowell, veteran D.C. attorney debate issues

Robert McDowell, FCC commissioner, and veteran cable attorney Dan Brenner from Hogan Lovells sat down with B&C Washington bureau chief John Eggerton recently for a webinar covering network neutrality, the FCC’s Tennis Channel decision, media ownership and more. An edited transcript of their conversation follows.

Do you think the network neutrality rules are going to survive court scrutiny, and what happens if they don’t?

Robert McDowell:
I do not think they will survive. I think they will be vacated in their entirety. I would hope we would close the Title II docket now, but certainly in the wake of that.

Dan, if that happens, is it a good or bad thing, given the continued lack or regulatory certainty?

Dan Brenner:
There are legitimate issues that are going to arise in Internet governance. For example, should there be protocol-agnostic rules when deciding how to deal with bandwidth congestion, which was really the essence of the Comcast complaint. But I feel very strongly that taking those issues in the first instance to the FCC is not a good idea. Net neutrality is best left to discussions among the parties, and then if nothing can get solved, maybe the government plays a role as backstop.

Commissioner, you voted against the Tennis Channel complaint. In your opinion, what facts would be needed to constitute a valid claim? [Note: This question came from a Tennis Channel executive in the Webinar audience.]

This case had an existing contractual relationship between Tennis Channel and Comcast, so they had already agreed to a deal. So the remedy from the ALJ [administrative law judge] improves the Tennis Channel’s position beyond what it negotiated in the deal. Although one can say, ‘Well, they had to take that deal because that is all Comcast would give them.’ So, does it compel equal placement of all similarly situated channels, or does it say you just can’t discriminate for the wrong reasons?

The way I read the statute, it says you can’t discriminate for the wrong reasons. And, as laid out in our dissent, commissioner [Ajit] Pai and I, the facts were really given short shrift by the ALJ in terms of what the marketplace really looks like.

There is the statute, but let’s also look at the Constitution. Would we feel as if the public were being served if the government got so involved in the placement of content in newspapers or on the Internet? That is actually a line that did not get into the dissent because we were trying to stick to the facts of the law. But from a broader policy perspective we need to think about that as well, because the lines are blurring among platforms from a consumer’s perspective.

The FCC is teeing up an answer on media ownership rules. What should they look like?

I want to keep my mind open until we close the record completely. But I think that the newspaper/broadcast cross-ownership ban is largely an anachronism and has actually accelerated the reduction of voices in the marketplace and, therefore, [results in] less diversity.

E-mail comments to and follow him on Twitter: @eggerton