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Upton Vs. FCC: Expect a Battle

Rep. Fred Upton (R-Mich.), the newly minted chairman of the powerful House Energy & Commerce Committee, gave B&C an early read on his telecom priorities, including that he will try to help update the “horribly outdated” media ownership rules. But first up is Upton’s vow to block the FCC’s attempt to codify media ownership rules. In e-mailed answers to questions from Washington Bureau Chief John Eggerton, the E&C chairman was not shy about expressing his views. He suggests the FCC is trying to take over the broadband industry, and he will try to stop it.

In an interview that begins here and continues online, Upton says plenty about network neutrality, the media ownership proceeding, Comcast/NBCU, spectrum reclamation and much more.

At press time, the FCC was scheduled to vote on the network neutrality order Dec. 21. Why are you opposed to the rules?
First of all, there’s no crisis that needs solving here. For more than 10 years, the FCC under both Democratic and Republican administrations has recognized that the Internet has been such a success because we have kept it free of government intrusion. Section 230 of the Communications Act enshrines that principle by making it the policy of the United States to leave the Internet unfettered by state or federal regulation. If anything, intervening will hurt investment, innovation and jobs. The FCC has failed to provide any rigorous examination of whether any entity has market power in this space, and whether consumers are being materially harmed in any way.

And despite our repeated requests for hearings on this topic, we had none this Congress. The claim that these are just “rules for the road” that everyone agrees with does not hold water. If that’s all they are, why is the proposal to selectively enforce them only against Internet service providers? It is becoming more and more clear that this is just an attempt to make good on a campaign promise. The people spoke against takeovers of industry in the recent election. The fact that the FCC appears to be ignoring that and rushing to fi nish this proceeding before the new Congress convenes only reinforces the sense that this is about politics, not good policy.

Second, there has been an almost total disregard for sound legal analysis of the FCC’s authority. The FCC has espoused almost as many different theories as they have had meetings in this proceeding. An agency’s authority in our representative democracy comes from the Congress. By acting without clear guidance from Congress, the FCC threatens its legitimacy.

Even more troubling than the substance of the proposal is the precedent it would set for FCC authority if left unchallenged. The FCC is essentially arguing that anytime the evolution of new services and technologies could have an impact on the legacy voice and video services it regulates, or might have some effect on broadband, it can also regulate those new services and technologies without limit.

What should the FCC do?
When changes in an industry outpace an agency's statute, the correct course is to come back to Congress, not create authority from whole cloth. To do otherwise would make the statute, and in fact the Congress, irrelevant. Every innovator, regardless of their view of network neutrality, should be troubled by what this means the FCC might do next without any Congressional input. And it is not acceptable to tell industry that if they don't accept one proposal, they will get a more onerous one. Nor is it acceptable to tell Congress that if it doesn't pass a law the FCC will go forward without it. It is the prerogative of Congress to say "no," when asked if it is appropriate to expand government's role.

Should the FCC pull the item from the agenda?

And if they don't?
If the FCC goes forward, I think multiple hearings on the substance, the underlying authority, and the process involved in the network neutrality proceeding are likely early next Congress, as is legislation to reverse any order.

Energy and healthcare are top of mind, but what are your telecom priorities for the committee?
I will need to sit down with my subcommittee chairs to discuss our priorities and the calendar, but after network neutrality my sense is we are likely to examine issues such as FCC reform, oversight of the broadband provisions of the stimulus package, Universal Service reform, spectrum, privacy and cybersecurity. We will also work to foster an environment that encourages innovation and job creation in the private sector.

Where are you on online privacy and the need for legislation?
The issue is clearly not going away. The status quo is not acceptable but there is not yet consensus on the solution. Like most communications issues, this is not a partisan topic and my hope is that the members of the committee can continue to work together to move this discussion forward.

Are you OK with the Comcast/NBCU merger and why or why not?
As I said in my recent letter, Comcast and NBC Universal have made the case that they do not have market power now, and still won't after the transaction. If that is the case, no conditions are warranted. If it is not the case, I would expect the Commission to impose only the narrowest of conditions needed to address whatever merger-specific issues of market power exist. This transaction should not be used to address anyone's Christmas wish list of industry-wide policy objectives.

Should broadcasters have to give up some spectrum, and do you support compensating them?
The question is not whether broadcasters should give up spectrum. The question is whether we should provide the FCC with authority to share auction proceeds with any spectrum licensee who voluntarily returns spectrum. I certainly think that is an approach worth considering in light of our need for more spectrum to address the demand for wireless broadband.

Broadcasters have gone years without certainty on media ownership regulations. What can the committee do, if anything, to help get them that certainty?
The media ownership rules are horribly out of date. They do not reflect the realities of today's marketplace. There is far more competition and far more competitors than ever before, including entirely new Internet-based platforms. I think Committee oversight can help the FCC put its ownership regulations on much firmer footing, particularly in light of recent court decisions calling the existing regulations into question.

How vigorous will your oversight be of the FCC and how soon after you take over will the commissioners be asked to come to the Hill?
As discussed in my answers above, I think we can expect a series of hearings on network neutrality early in the year, as well as an examination of FCC reform and efforts to increase transparency. I also hope to have the commissioners appear frequently to discuss their agenda and any other issues that pop up throughout the Congress.

Is there a question we should have asked you, and what would your answer be?
You should have asked me if I am optimistic about the things we can do in the Communications subcommittee to help industry provide new and innovative services to the American people, kick start our economy and create jobs. The answer is yes, and I believe we can do so on a bipartisan basis.

E-mail comments to and follow him on Twitter: @eggerton