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McDowell: Net Neutrality Debate Should Be Reframed

FCC Commissioner Robert McDowell says the debate over network neutrality should be reframed as one about "anticompetitive" conduct rather than "discrimination." He points out that there are already laws against the former.

He also said there was still concern, which he appeared to share, about localism proposals morphing into some form of Fairness Doctrine-like speech chilling, if not actually a return of the doctrine itself.

That came in an interview for C-SPAN's Communicators series.

McDowell said that while discrimination is often seen as a dirty word in the net neutrality debate, to network engineers that often means prioritization, which is part of reasonable network management.

On a related issue, McDowell said he had had no advance notice of the Media Bureau's decision to send letters to Apple, Google and AT&T asking for info on Apple's decision not to accept its Google Video application for the iPhone and dropping some other related apps.

He said it doesn't hurt to ask questions and gather data, but that the marketplace appears already to be moving toward opening up networks to unaffiliated devices and devices to outside applications. But he also said: "At what point do we go from being the Federal Communications Commission to being the Federal Software Commission." The FCC does not have regulatory authority over Apple or Google, but the letters were framed as seeking information on the FCC's interest in whether the networks it does regulate, like AT&T, which also got a letter, should be required to open their nets to unaffiliated devices and applications.

McDowell suggested that could be akin to government mandating that Whole Foods carry frosted flakes.

Asked whether the FCC would be tackling local ownership issues, he pointed out that the FCC would have to as a matter of law per its congressionally mandated quadrennial review of its rules.

Echoing the Hippocratic Oath, he said the FCC should first do no harm and that it would be a bad time to "heap new regulations" on broadcasters already hurting. He pointed out he had just met with some of those broadcaster who told him that about half their ad revenue came from the decimated auto category.

The issue of the Fairness Doctrine was raised, as it is in most FCC interviews these days. McDowell said he took FCC Chairman Julius Genachowski at his word that he did not plan to reinstate it, but said there is concern about the localism notice of proposed rulemaking back in 2007 and the possibility that, "in the view of some, "that would be a "back-door" way of bringing back the doctrine.

He is concerned about the proposal of community advisory boards that "could have great sway over the kind of content each broadcaster airs and also great sway over whether or not they get their license renewed."

He said coupling a perpetual renewal mode with the advisory boards, where it was unclear how members would be appointed, created "a huge constitutional issue," but also was not good public policy.