Republican FCC Commissioner Meredith Attwell Baker says
she can't see why the FCC should be able to force broadband build-out
as part of a merger review process and that broadcasters should get a chance to
be part of the new media equation. She also said some Internet backbone
providers--she named no names--were looking to game the network neutrality
issue to get the FCC involved in commercial disagreements.
In an interview for C-SPAN's Communicators series, she said
that while Comcast's pledge to build out broadband to 400,000 new households as
part of the NBCU joint venture public interest pledges was an
"exciting move, "it seems to me that nowhere is there a nexus between
a merger between a programmer and a distributor that causes us to force them to
build out broadband to households."
Baker said it illustrated the FCC's leverage over companies.
She said there was a "danger" that Comcast could withhold online
content from Apple or Google TV, which she called a legitimate concern. But she
said the broad scope of the online access conditions and their seven-year
duration was problematic.
Nobody really knows yet what the business plan is or how to
monetize it, Baker said. "I think seven years is a long time to have a
condition. I am afraid we're market forming as opposed to imposing regulatory
conditions." Baker indicated the seven-year conditions were a compromise
between the FCC and Justice. FCC conditions are usually more like six years,
and Justice 10.
Baker said she considered voting against the
merger because of the conditions, but said she worked to moderate the
conditions and conceded that you don't always walk away with everything you
Baker said if it had it been up to her, the review would
have been faster and that many of the "voluntary" conditions (Baker
made quote marks with her hands) were extraneous and not deal-specific.
She said she shared the concern of some Republican
legislators about the FCC review process. House leaders have signaled hearings
and/or investigations into the FCC in general and its merger-review process in
particular. "I expect to spend a lot of time on Capitol Hill in the
next couple of months," said Baker.
Baker said she thought it "highly likely" the
court would overturn the FCC's new network neutrality rules, which she voted
against. Baker's interview was conducted before Verizon launched the first
legal salvo with an appeal of the rules in the D.C. Circuit Thursday.
She said it didn't matter which court hears the case, though
she said the D.C. circuit is likely the most expert on the issue given that it
ruled in the BitTorrent case. In that decision, the court ruled that the FCC
had not adequately explained where it got the authority to regulate Comcast's
blocking of BitTorrent file uploads. The FCC's chairman and general
counsel say they believe this time around they have met that legal
sustainability test in justifying the new network neutrality rules.
Baker does not agree. "The legal case is weak enough
that it doesn't matter where it goes I think it will be overturned."
Given the spectrum demands of Smart phones and tablets, the
country is approaching "spectrum exhaustion," she said. But she
also indicated the FCC needs to focus less on auctioning spectrum and more
on a holistic policy of sharing and more spectrum efficiency. "I
think we need to pursue all paths. She pointed out that the government just
moved broadcasters off analog a year and a half ago. "I think we need to
give broadcasters a chance. They're looking at mobile television, and at HD TV.
This is being portrayed as a fight between broadcast and broadband, and I
think there is a place for both of them, for one-to-one and one-to-many."
Baker did not speak directly to the complaint by network
backbone services provider Level 3 that Comcast's fees for delivering video as
part of a peering arrangement violated the FCC's open Internet guidelines, but she
addressed the issue of a backbone provider complaining about a peering
Asked if she agreed with fellow Republican commissioner
Robert McDowell that the FCC's network neutrality order will lead to constant
revisiting with every complaint, she said yes, and that the commission was already
starting to see that.
"We have a backbone complaint," she said,
"and backbone has traditionally been a very competitive industry, it has
not been regulated, and it was excluded from the net neutrality order because
of its competitiveness. We are already seeing companies trying to game the
system and define network neutrality more broadly so we will take part in some
of those commercial disagreements between carriers."