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NCTA’s Legal Eagle Takes Flight

2/28/2009 2:00 AM Eastern

After more than 16 years of fighting cable’s competitors — and the government — Dan Brenner, the longtime senior vice president of law and regulatory policy for the National Cable & Telecommunications Association, is leaving to join Hogan & Hartson, an international telecommunications-law firm in Washington, D.C. Brenner tackled the NCTA’s biggest regulatory challenges as cable transformed from a one-way antenna service to a full-service provider of voice, video and data. As the search begins for his successor, he took a few minutes with Multichannel News editor in chief Mark Robichaux to talk about cable’s battles — past and future. An edited transcript follows:

MCN: Why are you leaving?

Dan Brenner: I decided that if I was going to do something next in my career this is a good time to be exploring it and to do it. I’ve had a pretty rich career so far. If you think about the world of trade associations, the NCTA is in a class by itself. And, I think people who fight us and who are with us recognize it. The caliber of lawyering from the NCTA is unlike any other trade association. We make our own sandwiches here. Many trade associations use outside law firms.

MCN: What’s been the toughest battle that you guys have faced in the last couple of decades?

DB: Bringing rationality to the ’92 Cable Act. And it took probably four years to do it. It was probably the toughest regulatory challenge. There were 14 rate orders, and it took the FCC until 1994 and a delegation of cable bankers and operators coming in and programmers saying we’re being starved of any funding for programming and system growth and finally the commission developed some mechanisms. But that took a very long time and there was an effort, I think, by the FCC to implement kind of a punitive result on the cable industry through the rate reductions.

And then I think the other battle, which we still are fighting over, is the First Amendment rights to cable. It still is very odd that the government can require us to carry programming that our viewers may not want to see and we don’t want to carry, and because the content is carried on broadcast spectrum it has to be carried.

The must-carry rule just seems, in this era, to be very outdated. And yet that’s the law in 2009. And retransmission consent is a heads-we-win, tails-you-lose position for broadcasters. They have the backstop of must-carry, but if their programming is valuable they can withhold it until the right payment comes in — that backstop that makes it an unequal playing field.

Finally, I’m proud of what we did with the a la carte proceeding at the FCC. We put a comprehensive report and pretty much convinced the FCC because it showed through as objective data as you could find that as appealing as it was on paper, it wouldn’t work in practice. And it would have been worse if government imposed it.

MCN: Do you think the FCC has been too tough under chairman Kevin Martin?

DB: I think his single-minded attention to cable was inexplicable. In the dispute involving Comcast and BitTorrent, I think there was a good faith attempt by cable — and Comcast in particular — to work through what is an evolving policy-rich problem, in which there are a lot of useful and often divergent opinions or approaches. These are really important problems for the future of the Internet. And instead of kind of a thoughtful analysis of how do we deal with network management — which is the legitimate question, the FCC was accusatory and almost vindictive in tone. And it was unnecessary.

By and large, this industry tries to meet the government more than halfway in trying to do what’s right. It can’t do everything right because, for one thing, video turns out to be an enormously complicated product to deliver flawlessly.

MCN: Kevin Martin aside, is the FCC doing an adequate job as a rule enforcer?

DB: Things are changing. For some viewers the FCC is sort of irrelevant. I think they need to adapt. In the the last couple of years have been an attempt to use whatever regulatory sledgehammers that could be located in the ’92 act and bring them out for one last wallop.

MCN: Looking ahead, what’s going to be the biggest issue for the cable industry?

DB: Newer businesses: How will cable develop its broadband service? In other words, how do we allow this, what I call “network neutrality 2.0” to occur, so that we’re not tied to a narrow model of the ISP as a pipe, but respecting that we shouldn’t be in the business of blocking or restricting people’s access to content?

I think we’re at the very early stages of what we mean by broadband. And it’s hard to believe that the broadband system in 2002 or 2009 is a model that will necessarily be around four or five years from now.


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