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Q&A: Michael Powell: Title II Move Could Spark ‘War’

3/30/2010 7:09 AM Eastern

Former Federal Communications Commission
chairman Michael Powell, now
a senior adviser with Providence Equity
Partners, is stumping for digital literacy
and universal access to broadband as
honorary co-chairman of Broadband
for America, whose 200 or so members
include the cable and wireless lobbies,
computer makers and a veritable host of
others. In the wake of current FCC chairman
Julius Genachowski’s unveiling of
the National Broadband Plan, Powell
weighed on a host of related issues. The
man who helped classify the Internet as
a more lightly regulated Title I information
service says to try and reclassify it
as a Title II service would be a disaster
leading to a long court fi ght. He also
thinks the FCC can come up with network
neutrality rules that are “appropriately
light and appropriately thoughtful.” He
spoke to Multichannel News Washington
bureau chief John Eggerton.

MCN: What do you like about the FCC’s plan?
Michael Powell: I think there is real value
to having an integrated, coherent, comprehensive
look at the entire ecosystem and at
least provide a statement for understanding
government thoughts and directions
about that ecosystem. I sort of hate using
that word all the time. Julius Genachowski
is using the word, but it is sort of true.
When I was chairman I was a little frustrated
that an important part of it is communications,
but an enormous part of it
is aff ected greatly by other pieces and so I
think that is important.

I have always agreed and thought it
was useful to begin to consider the idea
of broadband solving national challenges
and less as a sort of blanket utility. It is
also a tool to be incorporated in other areas.
And while that part of the plan doesn’t
get that much attention because it is so far
outside the FCC’s jurisdictional space. I
think for the country to be talking about
broadband as a component of healthcare
and education and all those things I think
is a really valuable advancement.

In terms of the communications stuff , I
generally like the [universal service fund]
direction, though it is a long road and we’ll
see where it really goes. It is fraught with
distortions, frequently funding the wrong
things. If they are able to execute a direction
that redirects the broadband and reforms
the distortions of that system, that’s
a plus.

I like the emphasis on spectrum. I think
particularly because there is a lot in that
plan that is nice to hear about but is far outside
the FCC’s ability to command and direct.
But the one thing they do have a lot of
infl uence over is spectrum policy.

MCN: Former FCC Chairman Reed Hundt
recently said his plan all along was to
supplant broadcasting with broadband
as the national medium of choice. Was
that your secret plan, too?

MP: I don’t believe there ever was a secret
plan. I don’t believe Reed ever really had
a secret plan. … I don’t really subscribe to
the notion that the government anoints
through a plan or otherwise what is the declared
national infrastructure. It seems to
me the market and the public decide that.

MCN: What do you make of the FCC’s talk
in the plan of a free broadband service,
and particularly if it is a condition for
wireless spectrum auction winners?

MP: Honestly, I am super-doubtful about
that. I think we have seen it before. I think
all the things that were troubling about it
then are troubling now. I think there are
elements of this report that are in internal
tension with themselves.

MCN: What do you think about the FCC
possibly classifying Internet service as
a Title II service subject to mandatory

MP: I think that idea is an unadulterated

MCN: Not a surprise, since yours was the
commission that defined it as an information
service subject to lighter regulations.

MP: Not entirely. Part of that decision was
during my commission, part of that was
during Kevin Martin’s tenure [Powell’s
successor as chairman]. I see so many
misrepresentations of historical fact that
it is worth noting here that broadband
has never been classified as Title II. You
will get people who will say: “We’re going
back to something.” No, we never
had that something. Cable is the leading
broadband provider in the United States
and it has never been a Title II and never
been a common carrier. … The only thing
that was ever Title II was the old dial-up
telephone service, more because of historical
accident than policy forethought.

So, broadband itself has never been Title
II. In fact, all the investment that has been
deployed in the United States has been on
the assumption that it is a lightly regulated
information service. If the commission
wants to recklessly change and try to fight
the battle to reclassify that, we will be in
a period of painful, prolonged uncertainty,
confusion and war for probably four to
six years with an undoubted trip to the Supreme
Court interspersed between.

And for a country that says it wants to
dramatically up the amount of private investment
going on in broadband, that would
seem like a very backward way to do it.

MCN: Let’s talk network neutrality for a
moment …

MP: I think you can have net neutrality
rules that could be appropriately light and
appropriately thoughtful. I do worry that
a lot of the advocates for the concept at
the commission are looking at something
that is way more dramatic than that.

I am a really big fan of the open Internet.
I think that the four principles that I articulated
originally was a better way. It focused
on consumer rights and principles and was
more manageable. Any time the test is reasonableness,
and on a case-by-case basis,
there is no bright line. Whether a certain
action or permutation of possible actions is
or isn’t reasonable is going to be evaluated
on a case-by-case basis whenever a carrier
attempts to do something and somebody
chooses to complain about it.

I think that the most significant thing
about the network neutrality proposal is
the idea of a nondiscrimation principle. I
think if you are candid about that, it is really
a principle that protects other businesses
and not just consumers. So, the class of
complainants that would possibly have the
right to bring things to the commission includes
a huge host of business relationships
that are going to intensify the kind
of business-to-business disputes about access
and now the commission will put itself
in the middle of those. I think that is different.
I think that when you put the rules
down in black and white, the language is
going to the source of much mischief in the
way that carriers argue their cases.

MCN: If the FCC does put itself in the
middle of this issue, should it apply the
rules to applications as well as service

MP: I will say that, putting aside the nittygritty
of the commission’s jurisdiction
of one thing over the other. All the things
that people say the spirit of net neutrality
is for, strike me as being much more problematic
on the Web [search engine/portal]
side than on the Internet [access] side.

On the Web side, we have companies
that have substantially higher monopoly
market dominance than these carriers
do. We have companies on the Web that
do stuff to bias their own businesses over
other competitors’ businesses much more
dramatically I have ever seen and infrastructure
provider do.

If I search Google I will get Google-fed
video that is from their owned property
and not video from someone else’s property.
Whole companies spend time trying to
make sure they get to be on that front page
and not page 10, and if you are on page 10
you’re dead. These are companies that introduce
products that go into my address
book without my permission and then distribute
that information to friends in the
form of Google Buzz.

I do think that if the government is going
to say that it is that kind of hypothetical
activity that troubles them with infrastructure
providers, then I think there is
something either unfair or biased or dismissive
about not paying equal amount
of attention to those business practices in
the content side of the Web. The average
consumer has experienced those kinds of
behavioral business choices substantially
more than they have experienced anything
their carrier is doing to bias their
Web experience.

So, maybe the commission will say we
don’t have jurisdiction, but arguably you
are favoring one set of businesses if one
class of providers do things like this all day
long and you seem to think they are OK,
but then, in the infrastructure context, the
same kinds of things would be considered
horrible and heinous.

MCN: Commissioner Michael Copps has
said that he has been calling for a national
broadband plan since 2001. Is there something
you should have been doing about
broadband back then that you didn’t?

MP: I let every chairman and commission
have their day. But the most notable
speeches I ever gave in that period were
the two speeches on digital broadband
migration. I can send you sheets from
back then of us having very aggressive
Internet broadband policy programs. The
only thing we didn’t have is a directive
from the United States Congress in the
middle of a financial crisis telling us to go
write one.


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