Net Neutrality Court Decision Likely To Result in 'Swiss Cheese of a Regime,' NCTA's Powell Says
Rather than a definitive victory or defeat of the FCC net neutrality order, the U.S. Court of Appeals for the D.C. Circuit is likely to deliver "a hodgepodge of wins and losses," NCTA President Michael Powell said in an interview for C-SPAN's The Communicators. "That will create a sort of Swiss cheese of a regime, which is part of what I've been concerned about all along. It will leave more confusion and complexity than it will stability and finality." The three-judge decision likely won't be issued for four months, and it will almost surely be appealed to the Supreme Court, Powell said.
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The Powell interview is scheduled to air 6:30 p.m. Saturday on C-SPAN and at 8 a.m. and 8 p.m. Monday on C-SPAN 2. The 30-minute interview covered topics ranging from the upcoming incentive auction to the FCC's review of Charter Communications' buying Bright House Networks and Time Warner Cable. Much of it involved his thoughts about FCC broadband reclassification under Title II of the Communications Act. Powell said when he chaired the commission, it was focused on the same open Internet principles, but through deliberately not regulating broadband instead of "replicat[ing] the Ma Bell 100-year-old common carrier regime." Powell was critical of common-carriage approaches, arguing that leads to large barriers for new entrants: “Incumbents have a long history of learning how to master large complex regulatory regimes to their advantage. I won't be surprised if the same thing happens again." Powell also said "a lot of lazy thinking" has begun to equate common carriage or utility regulation with "saying something is important or indispensable."
When asked if he thought the judges seemed to be indicating they believed the FCC had jurisdiction for reclassification, though they might question how they asserted it, Powell said: "The real question is why will Title II produce faster internet for consumers? Why will Title II result in cheaper prices? You could’ve gotten to that same level of protection without such a damaging regime." Even if the Communication Act was ambiguous, he said that "the reading they’ve layered on that is completely inconsistent with everything Congress was trying to do."
Powell also said regulatory moves on the set-top box market flew in the face of a booming video market, given the growth of over-the-top options. "What's wrong with this market we need the government to engineer another alternative? Consumers don’t want more boxes. Streaming has been an invention that has overtaken what a lot of people have relied on this box to do. This isn't some great monopolistic market cable is trying to protect. We're trying to get rid of boxes. It’s a pain point. We hate managing inventory. This is something we'd like to move away from into software. That seems to me that’s a complete answer.”
The Charter/TWC/BHN review "has been really quiet," though that should change in a month or so, Powell said. "People will be looking for some signal -- what does the commission think of this?" Powell also said he didn't know if there was any cable company interest in vying for licensed spectrum through the incentive auction.
Heading the FCC during an election year "is a time of extraordinary caution," said Powell, who chaired it 2001-2005. "I was once told by a White House chief of staff ... the FCC is a place if the light goes on, it better go off as fast as possible. The political apparatus does not want to see controversy spin out of a regulatory agency they then have to own or explain. The last thing you need to do is trigger some big heated controversy that could be used, misused."