Republican Federal Communications Commission commissioner Meredith Attwell Baker says she can't see why the agency should be able to force broadband build-out as part of a merger review process and that broadcasters should get a chance to be part of the new media equation.
Baker also said some Internet backbone providers -- she didn't specify names -- were looking to game the network neutrality issue to get the FCC involved in commercial disagreements.
In an interview for C-SPAN's Communicators series, she said that while Comcast's pledge to build out broadband to 400,000 new households as part of the NBCU joint venture public-interest pledges was an "exciting move, "it seems to me that nowhere is there a nexus between a merger between a programmer and a distributor that causes us to force them to build out broadband to households."
Baker said it illustrated the FCC's leverage over companies. She said there was a "danger" that Comcast could withhold online content from Apple or Google TV, which she called a legitimate concern. But she said the broad scope of the online access conditions and their seven-year duration was problematic.
Nobody really knows yet what the business plan is or how to monetize it, Baker said: "I think seven years is a long time to have a condition. I am afraid we're market forming as opposed to imposing regulatory conditions." She indicated the seven-year conditions were a compromise between the FCC and Justice. FCC conditions are usually more like six years, and 10 for Justice.
Baker said she considered voting against the merger because of the conditions, but worked to moderate the conditions and conceded that you don't always walk away with everything you want.
Baker moted that if it had it been up to her, the review would have been faster and that many of the "voluntary" conditions (Baker made quote marks with her hands) were extraneous and not deal-specific.
She said she share the concern of some Republican legislators about the FCC review process. House leaders have signaled hearings and/or investigations into the FCC in general and its merger-review process in particular. "I expect to spend a lot of time on Capitol Hill in the next couple of months," said Baker.
Baker thought it "highly likely" the court would overturn the FCC's new network neutrality rules, which she voted against. Baker's interview was conducted before Verizon launched the first legal salvo with an appeal of the rules in the D.C. Circuit Thursday.
She said it didn't matter which court hears the case, though she said the D.C. circuit is likely the most expert on the issue given that it ruled in the BitTorrent case. In that decision, the court ruled that the FCC had not adequately explained where it got the authority to regulate Comcast's blocking of BitTorrent file uploads. The FCC's chairman and general counsel say they believe this time around they have met that legal sustainability test in justifying the new network neutrality rules.
Baker does not agree: "The legal case is weak enough that it doesn't matter where it goes I think it will be overturned."
Given the spectrum demands of smart phones and tablets, the country is approaching "spectrum exhaustion," she said. But she also indicated the FCC needs to focus less on auctioning spectrum and more on a holistic policy of sharing and more spectrum efficiency. "I think we need to pursue all paths. She pointed out that the government just moved broadcasters off analog a year and a half ago. "I think we need to give broadcasters a chance. They're looking at mobile television, and at HD TV. This is being portrayed as a fight between broadcast and broadband, and I think there is a place for both of them, for one-to-one and one-to-many."
Baker did not speak directly to the complaint by network backbone services provider Level 3 that Comcast's fees for delivering video as part of a peering arrangement violated the FCC's open Internet guidelines, but she addressed the issue of a backbone provider complaining about a peering disagreement.
Asked if she agreed with fellow Republican commissioner Robert McDowell that the FCC's network neutrality order will lead to constant revisiting with every complaint, she said yes, and that the commission was already starting to see that.
"We have a backbone complaint," she said, "and backbone has traditionally been a very competitive industry, it has not been regulated, and it was excluded from the net neutrality order because of its competitiveness. We are already seeing companies trying to game the system and define network neutrality more broadly so we will take part in some of those commercial disagreements between carriers."