Republican Federal Communications Commission member Kathleen Abernathy has already dismissed the cable industry's leading legal argument against the forced carriage of cable-unaffiliated Internet service providers (ISPs).
The FCC is in the middle of a proceeding that will determine whether cable operators must open up their high-speed-data lines to competitors.
The National Cable & Telecommunications Association recently staked out the position that the FCC has no generalized authority to mandate ISP access. Cablevision Systems Corp. and other MSOs have alleged that a forced-access regime would violate First Amendment speech protections and Fifth Amendment private-property protections.
In a June 26 speech here, Abernathy didn't address the constitutional issues. But she did comment on cable-industry questions about the agency's authority — and came down on the side of those who believe Congress granted the FCC the power to impose access conditions.
"When it comes to the ability of independent ISPs to obtain access to wireline or cable facilities, the [FCC] has the authority to adopt a narrowly tailored regulatory regime … if such regulation proves necessary," Abernathy said before the Alliance for Public Technology and High-Tech Broadband Coalition.
The FCC is planning to decide whether to remove current access mandates on local phone companies that offer high-speed data services, in addition to deciding whether to apply them to cable's broadband service.
Although she has expressed reluctance to see the FCC intervene in the market, Abernathy has said the agency would have difficulty going to court and justifying rules that impose access mandates on phone companies but not on cable companies that have 8 million high-speed data customers.
"For me, the answer to these questions hinges mainly on whether the network owners have market power and whether they will be able to exercise it to the detriment of consumers," she said. "In other words, is there a market failure?"
Access requirements should be a last resort, Abernathy stressed. Even if access rules are necessary to address a market failure, she said that crafting and enforcing those rules tends to be complicated and imposes enormous burdens on regulators and companies.
"One need only look at the experience under the 1996 Act to understand that implementing a forced-sharing regime exacts a huge toll in terms of the resources devoted to hammering out the terms and conditions on which the network will be shared," she said. Abernathy serves on the FCC with fellow Republicans chairman Michael Powell and Kevin Martin. The agency's lone Democrat is Michael Copps.
The agency is expected to adopt its broadband regulations by the end of the year.