NCTA to Congress: First Do No Harm

CABLE MAKES TELECOM LAW AGENDA KNOWN
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WASHINGTON — Michael Powell, president of the National Cable & Telecommunications Association, former Federal Communications Commission chairman and evangelist for tearing down regulatory silos, has told Congress what his cable-operator members would and would not like to see in a revamped Communications Act.

What cable operators don’t want to see are laws like must-carry, which requires their subscribers to pay for TV stations before they can get cable channels, and similar regulations that have historically been applied to cable but not competitors such as satellite-TV providers.

In response to a request from the House Energy & Commerce Committee on input in its planned telecom law remake, the NCTA also put in an argument for why the FCC should continue to draw a line between information services and telecommunications services, as long as that means keeping broadband free of the common carrier-style Title II regulations.

Some groups are pressuring the FCC to impose that regime in the wake of the U.S. Court of Appeals for the D.C. Circuit’s decision to strike down the agency’s anti-blocking and anti-discrimination Open Internet regulations.

FCC chairman Tom Wheeler last week continued to keep his cards close to the vest on new network-neutrality regimes. But he did pledge to outline his approach in the coming days.

The court said the FCC had the authority to reinstate those rules, as long they are rooted in the proper legal context. That context could either be Title II or, conceivably, the agency’s Communications Act Section 706 mandate to insure broadband deployment in a reasonable and timely fashion to all Americans.

While Democrats have proposed legislation clarifying the FCC’s authority on net neutrality, the same Republican leaders who sought comments on the rewrite from the NCTA and others have made it clear they are not looking to reinstate them. Here is the gist of NCTA’s plan for bringing cable regulation — and deregulation — into the digital age.

First, do no harm. Powell has been a strong proponent of the Hippocratic oath approach, which could be rephrased, “If it ain’t broke, don’t try to fix it.” Cable is helping deploy broadband faster than any technology in history, he said, while the industry’s programming platform is “making cable home to some of the best television ever created.”

To keep those intellectual and technological goods flowing freely, Powell has argued for as much deregulation as possible and regulatory certainty when rules are necessary.

Where those regulations might be necessary, per Powell, are in preserving core values like 911 emergency calls, universal service and access for the disabled. Even then, Powell said, the laws and regulations should be tailored to those specific aims and applied consistently across comparable providers and services.

Consumer protection is key. Wheeler has made a point of tying his proposals to consumer benefi t. But Powell warned that consumer protection should not be used to cloak economic regulations on rates or terms of service.

Technological neutrality. “Only cable operators are subject to rate regulation and ‘must-buy’ requirements,” Powell noted. “DBS providers essentially avoid PEG and leased-access obligations; and DBS providers have no obligations to make their affiliated networks available to competing multichannel video programming distributors. The competitiveness of the multichannel marketplace is undeniable and continuing to impose these requirements on cable operators is no longer necessary and cannot be justifi ed.”

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