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Neutrality in High Gear

With some major broadband and broadcast items on the FCC’s agenda for early-to-mid-2011, and a new Republican majority in the House sworn to vigorous agency oversight, industry lobbyists will have their hands full. But they could get a hand from a new House Republican majority taking aim at FCC regulations, initially focusing on the just-passed network neutrality regs. Also high on the D.C. agenda will be dealing with the fallout of the first big media merger to implicate online distribution (Comcast/ NBCU), and a potential sea change in the broadcasting business.

Republican House leaders have pledged to block the new Internet regs, as Rep. Fred Upton (R-Mich.), new chair of the House Energy & Commerce Committee, recently telegraphed to B&C. That grilling will start with a hearing, likely in January, followed by more on the policy, the process and the legal underpinnings.

The draft approving the Comcast/NBCU deal has been circulated at the FCC, with a vote likely coming sometime in January, when Justice is expected to sign off as well. But that won’t be the end of it, says deal critic Matt Polka, president of the American Cable Association. “Assuming the deal is approved in the January/February time frame, as we believe,” says Polka, “our job will be working with our members to insure that the conditions are implemented and obeyed.”

According to a draft, those conditions now include Comcast carrying noncom must-carry stations that agree to give up spectrum, and teaming with nonprofit online news outlets in at least half of its TV-station markets.

Comcast will also be subject to standstill agreements for retrans, NBCU cable programming deal impasses and net neutrality conditions, and must provide nondiscriminatory access to online content.

All this is only scratching the surface—though admittedly, a pretty big scratch—considering some of the other big issues coming down the Hill’s pike in the new year:

AllVid: Bill Lake, FCC Media Bureau chief, says to look out for a notice of proposed rulemaking by the end of the first quarter on rules for a new gateway device. FCC Chairman Julius Genachowski is trying to promote a retail market in set-tops and deployment of broadband through a gateway device that will combine online and traditional video in the set-top box, and will work with different operators. Cable operators are trying to make sure those rules don’t constitute de facto unbundling of their service.

Media Ownership: A decision out of the FCC on the quadrennial review of its media ownership rules has been pushed to at least the middle of the year, thanks in part to some problems with a number of studies the FCC commissioned, including various budget issues. “The conventional wisdom is that the FCC will probably not get around to it before mid-2011 or later,” says National Association of Broadcasters spokesman Dennis Wharton.

Broadcasters will be looking to at least get the newspaper cross-ownership ban lifted in its entirety. “You wonder, if the Comcast/NBCU deal gets approved, why we can’t have two stations in Peoria?” says Wharton.

Retransmission Consent: The FCC will propose some new rules of the road for retrans, likely at the least clarifying what goodfaith negotiations are and aren’t. Broadcasters will push for as little FCC action as possible; cable operators will seek arbitration and standstill agreements at a minimum. The FCC may simply be kicking the issue can down the road, under pressure from some in Congress and the cable industry to act but not wanting to alienate broadcasters, whose help lawmakers will need to push for legislation allowing payments for reclaimed spectrum.

Spectrum reclamation: The FCC has already taken the first step toward freeing up broadcast spectrum by giving wireless broadband essentially co-equal rights as a primary user of that band. But the commission has also yet to explain just how it is going to pack broadcasters into the VHF band, which is less conducive to DTV, without compromising their ability to compete in a multiplatform world. The commission has asked for input, with a deadline for comments likely sometime in March.

The cellular industry has already weighed in with reporters on the subject. In a conference call looking ahead to 2011, executives at CTIA-The Wireless Association said to expect them to make the case that in some markets, even broadcasters that may want to cash out won’t be able to because the FCC can find enough room by “repacking” them into those VHF frequencies.

Rewrite of the 1996 Telecommunications Act: Various legislators have signaled that next year could mark the launch of a rewrite of the 1996 Telecommunications Act. They point out that the law, which was telephone-centric, has been overtaken by another mass medium—broadband.

Also on the watch list for 2011: Online privacy/do-not-track legislation and Universal Service Reform.

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