NCTA's McSlarrow: BitTorrent Opens Only Theoretical Floodgate

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National Cable & Telecommunications Association president Kyle McSlarrow said Tuesday that theoretically, it could be open season for network management in the wake of the BitTorrent decision, but that as a practical matter he did not expect much, if anything, to change while the Federal Communications Commission is considering its options on responding to the court.

McSlarrow also thinks there is room under Title I to support some form of network neutrality proposal without moving to a Title II regime.

Following a panel session at the American Cable Association convention, McSlarrow was asked what operators could to in terms of managing their networks the day after the decision that they couldn't do before.

"I don't know that anything has changed," he said. "No one was managing bandwidth in a way to inflict consumer harms, they were managing bandwidth in a way to deal with congestion.

"Theoretically, I suppose you could do anything," he added, "but I think, in the real world, we made commitments that we support the FCC's Internet policy statement. We have always abided by it and we stand by the statement. And that is the reality that our operators and, more importantly, the engineers that work with the CEOs are trying to implement."

The FCC is pondering reclassifying broadband as a Title II telecommunications service subject to more strict common carrier access mandates than the current Title I regime.

Asked what that would do to cable operators, McSlarrow said he was not sure, but that from the Wall Street perspective, "the biggest overhang, I think, is the massive uncertainty." He said its possible effect on investment is possibly the biggest concern."

McSlarrow said he thought there was ample authority under Title I to both implement the National Broadband Plan and do "something" on network neutrality. "I think there is an argument that the FCC has some Title I authority. But the right way to do it, as [FCC chairman] Julius [Genachowski] is doing, even if I am not signed on to the rules themselves, is to first do a rulemaking. That is what didn't happen in the case of Comcast."

"If the FCC concludes their only choice is Title II," however, "it is time for Congress to step in," he said.

McSlarrow also said that he plans to continue to have conversations with National Association of Broadcasters president Gordon Smith about retransmission consent, saying it was one of those "places where we have disagreements. But that, where we could, we should figure out ways to work together. Retransmission consent is one of those issues. So we are going to continue those conversations and see where it goes."

He added that they were the same kind of conversations he had with Smith's predecessor, David Rehr.