McDowell: FCC Response To BitTorrent Case A 'Complete Overreach'

"The argument that somehow this case [Comcast/BitTorrent] obliterates our ability to do anything in the broadband space is a complete overreach," said FCC commissioner Robert McDowell in an interview on June 18 for C-SPAN's Communicators series.

He was explaining his emphatic "nay" to the FCC majority's decision Thursday to launch its inquiry into classifying broadband transmissions under a handful of Title II common carrier regulations. He was joined in that dissent by Republican commissioner Meredith Attwell Baker.

In the Comcast/BitTorrent case, decided April 6, the court reversed the FCC's finding that Comcast had used improper network management, concluding that the FCC had failed to sufficiently tie its network management decision to congressional authority.

Title II is FCC chairman Julius Genachowski's proposal for clarifying that authority, but McDowell said it is unnecessary. He has consistently advised against applying what he calls monopoly phone regs of a bygone era to this one. At the meeting, he pointed out that common carrier regs actually could be traced back to the railroads in the 1800s.

McDowell suggested that a better way to ensure against potential bad broadband actors was to improve competition by opening up the "white spaces" between TV channels for wireless broadband. "If you have more competiton in the last mile, then if you have some knucklehead out there who wants to be anticompetitive and frustrate their own consumers demand, which doesn't make a great busines model, then that is to the advantage to a competitor. All of these concerns about manipulating content in an anticompetitive way disappear."

McDowell has also been a consistent champion of marketplace competition as a better governor of conduct rather than FCC regulation.

But McDowell also maintained that the FCC was not somehow rendered powerless by the federal court decision in BitTorrent, in which the FCC was found to have failed to identify its congressional authority to regulate network management.

Another reason the FCC majority is considering Title II classfication is to make sure that it can migrate phone subsidies (in the Universal Service Fund) to broadband deployment as part of National Broadband Plan. McDowell said the FCC can already do that under the Communications Act: "I think we still have authority to reform universal service substantially" based on its authority in the Act to modify the fund.

The commissioner said even if that authority isn't there, the commission could tie the phone subsidy to performance in broadband. "That clearly would survive appeal," he said.

McDowell said that he was told the commission majority was contemplating coming up with an order on classification "sometime this fall." He said he was not sure whether it was going to be before the election or after it, but either way he called it a "tight turnaround."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.