Q&A With NCTA's Dan Brenner

Cable World, July 11, 2005

By John P. Ourand

In late June, the Supreme Court handed the cable industry a victory in the so-called Brand X cable regulation case. Six of the nine justices ruled that cable operators do not have to open their networks to rival Internet service providers, buying NCTA and FCC arguments that cable modem services already have plenty of broadband competitors and don't need to be heavily regulated. We sat down with Dan Brenner, NCTA's SVP, law and regulatory policy, to discuss the decision's fallout.

CableWORLD: I guess congratulations are in order.

Dan Brenner: Thanks very much.

CW: What does this ruling mean for cable operators?

Brenner: It provides regulatory certainty. The FCC's six-year effort at a deregulatory approach to broadband has been vindicated as being within their legal authority. Cable will continue to enjoy the benefits of that environment. We'll continue to be able to sell our cable modem service and improve on it as we've been doing.

CW: What questions are still outstanding?

Brenner: Is there some basis for the FCC to impose some kind of ISP access regime? I don't think there's legal authority for it to impose that; nor is there public policy benefit. There are also questions related to whether or not this service should contribute to a universal service fund as an information service. The FCC can assess interstate universal service charges against information service. Up until now, it hasn't. There also is some question about the role of municipalities. What regulation do local governments have with this service? After 2002, we stopped paying franchise fees to local municipalities.

CW: Does the ruling mean that telcos should have similar restrictions lifted from their broadband business?

Brenner: There's explicit language in the order that says the court is not expressing any views on that. They are not expressing any views on DSL deregulation.

CW: Would NCTA publicly support or oppose such regulations at the FCC?

Brenner: We certainly would not oppose it. Like services should be treated alike.

CW: What can cable do to convince critics that it will adhere to network neutrality without a set of regulations in place?

Brenner: This is a solution in search of a problem. There are lots of things we do affirmatively and actively that benefit customers, whether it's spam blocking, virus protection, spyware surveillance. I know that's not really what the network neutrality debate is about. But it does suggest that it's complicated when you start saying what operators can and can't do to facilitate the network. The first time somebody tries to go to ap.org and the cable operator or DSL operator says you can't go there, you have to go to reuters.com or nytimes.com or nationalreview.com, that's when we'll have evidence that there's an issue here. Right now it's not happening.

CW: I read that this ruling could prove fatal for Internet phone companies like Vonage. Would you agree with that view?

Brenner: I don't see how this ruling has anything to do with that. This ruling basically is whether or not the FCC was correct in defining this as an interstate information service. The whole debate turned on whether the word "offering" was an ambiguous term. The court said it is. Therefore the commission has the right to interpret it. All the court should do is see that the FCC's decision was reasonable. The definition of telecommunication service was ambiguous. Six of the nine justices said what the commission decided was reasonable, and it was supported by reasonable public policy. That's all this decision really does.

CW: How confident were you before the decision?

Brenner: I asked my staff two weeks ago how they thought we'd do. Two of us, including myself, thought we would win this case because the key to it is that we never offered a telecommunications service. You never could call the cable system and just buy the transmission capacity. Since we never did it, it would be pretty hard for a court to say that we were always doing it.

Getting Personal With Dan Brenner

First R-Rated Movie: Last Tango in Paris.

Summer Vacation: A weekend in Rosslyn, Va.

First Album: Promises, Promises by Burt Bacharach.

Favorite TV show: The Daily Show With Jon Stewart.

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