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FCC Lacks Multicast Muscle, Says McDowell

New FCC Commissioner Robert McDowell put something of an exclamation point on his regulatory independence in a briefing with reporters Tuesday, including making it clear he does not think the FCC has the authority to mandate multicast must-carry without clearer direction from Congress.

McDowell, who was sworn in June 1, said he was open to separating the omnibus FCC ownership review into smaller bites rather than "one big kidney stone to pass." He also said he wanted to take a wait-and-see approach to the  issue of cable a la carte, saying consumer demand may force a private sector solution.

As to multicast must-carry, which like a la carte has been pushed by FCC Chairman Kevin Martin, an engaging and at-ease McDowell said he did not believe Congress had given the FCC authority to mandate it, saying if Congress wanted to give it that express authority it could.

In late May, Martin circulated a proposal to grant multicast must carry, but could not get the McDowell vote to approve it.

McDowell also said the FCC was just doing what Congress told them to do by regulating indecent content, saying the Congress had recently put additional wind in the commissions sails, referring to the bill to boost fines to a maximum $325,000 per incident.

McDowell called "network neutrality" a Rorschach term (those ink blotches psychologist ask patients to interpret), that depends on where you stand. Where he stands, he said, is in support of the FCC's four neutrality principles and concerned with balancing the need for network management with the threat of abuse.

He said it would be tough for the government to apply a prophylactic for a problem that does not yet exist, suggesting that the FCC did not want to be the French goalie, referring to a World Cup soccer shootout in which that goalie, as with most goalies in such shootouts, kept guessing left when the ball went right, or vice versa.

He defended the MASN settlement, in which Comcast and the Mid Atlantic Sports Network agreed to terms on carriage of Washington Nationals baseball games. McDowell had been instrumental in a condition on the Comcast/Time Warner Adelphia merger that put that carriage complaint by MASN on a shot clock.

He said it was good for consumers and didn't see forcing the hand of private negotiations as being in conflict with his philosophy of letting the market find its own solutions. He pointed out that when there is market failure, the FCC can step in, pointed out the ultimate deal was a private one.

While he did recognize the FCC's role in addressing marketplace failures, he said he preferred sunsets on such actions, putting the market on a "glide path" back to nongovernmental solutions.

McDowell said he saw two principal issues on the FCC agenda, "threading the needle" of the third circuit remand of media ownership rules, and revamping the universal service fund, which underwrites telecommunications deployment to rural and underserved areas via contributions from industry.

McDowell would not handicap the ownership issue beyond saying he was eager to look at the "refreshed" record, but he did say that he was not opposed to dividing up the numerous issues involved, which include newspaper-broadcast crossownership, multiple station ownership and radio ownership caps.

On the issues of fracnhise reform and expanding the USF funding base to include broadband as well as telephone revenues, he said he would wait and see if Congress acted.

But if a franchise reform bill did not pass, he said, the FCC has the authority to step in and take action itself.
He said he was looking forward to the Aug. 9 launch of an auction of reclaimed government spectrum for advanced wireless serivces, saying it was "terrific and a potential spur to new technologies.