this is actually one of the last outstanding cases on his docket. the 14 months it took, seemed at least in publishing circles, a little long. but in light of the complexity, the issues that were raised it makes sense in hindsight. so then the issue becomes who will take this up, will it have to be litigated from scratch? will it be heard again? are there other court cases that may factor into how, what kind of potential outcome is reached at a later date? will this drag on for years? we just don't know at this point. ..

>> and various military activities going on. whether the issue of orphan works or having a digital library is going to even register on the current congress. they also, i think, traditionally haven't necessarily been the most willing listeners in terms of trying to change current copy right law to make it more accessible to everybody, so i think it remains to be seen what congress will, in fact, due. >> sarah weinman, we'll talk with her again after the april 25th hearing. thank you. >> thank you so much for having me. >> coming up next on c-span 2, "the communicators" talks with robert mcdowell on the proposed acquisition of t-mobile by at&t and net neutrality issues.

then, israeli foreign minister danny ayalon. following that, a speech by throw rest huerta. and later, a live hearing on the commission on wartime contracting in iraq and afghanistan. >> this week on "the communicators," our guest is robert mcdowell, republican commissioner on the federal communications commission. and we're pleased to welcome back to "the communicators" fcc commissioner robert mcdowell, the lead republican on the five-member commission. commissioner mcdowell, we talked with your colleague, michael copps, last week, and i'm going to ask you the same question we asked him to begin which was regarding the at&t/t-mobile transaction. what do you see as the timetable for this to be considered, and what's the biggest impediment you see to this transaction

happening? >> guest: well, first of all, thank you for having me back. it's allergy season here in washington, so excuse me if i have to clear my throat a few times today. but i don't comment substantively on prospective mergers, but i'm happy to talk about process. they take anywhere from a year to year and a half functionally speaking at the fcc, so i would look for that sort of time frame. we've been told by the parties that we should expect an application to be filed at the fcc soon, within the next week or two, and then the clock starts ticking. of course, congress is going to want to take a look at this as well. i imagine the commerce and judiciary committees of each house of congress will have hearings on this, so it'll be heavily scrutinized. >> host: have you talked with at&t or t-mobile representatives? >> yes. they came into my office the wednesday after the announcement and met with me. >> host: what about sprint or verizon? >> guest: we have not yet met on

this proposed merger, but i imagine once it's filed, i will be meeting with all of the interesting parties. >> host: and, again, i want to show one little piece of video of michael copps talking about potential conditions on the merger and get your response. >> guest: i would hope if there's going to be a majority at the commission that is going to approve of this that we would be, obviously, looking at market by market and what divestitures might be called for. that's certainly important. i think, certainly, the open internet, network neutrality is important. and just looking at a level of concentration and market power across the board is important, so it's, it comes town to all -- comes down to all of the considerations go into deciding whether this services the public convenience, interest and necessity, that's our charge, and it's pretty wide ranging under the statute, and i hope we

will fulfill it. >> host: commissioner. >> guest: so, yeah, i've served for almost five years with mike copse and known him for even longer than that and have a high regard and respect for him. he's absolutely right when he says our standard's the public interest standard. that's what congress has told us to do, it's sort of a broad, amorphous standard different than the antitrust agencies. it could also be federal trade commission, and i've never quite figured out exactly how the possession arrow works as to who gets these mergers. but those agencies look at the antitrust perspective of mergers, any merger, and when you look at the wireless market, you do have to look at it market by market. geographic market, product markets as well. so it's complicated and complex, but i hope we can give it a full and fair airing and do it as quickly as possible. >> host: joining us, also, is lynn stanton with "telecommunications reports." she's a senior editor there.

>> host: thank you. as you mentioned, the standard is rather amorphous. what do you look at? the is it a balancing act of what it does that's positive, what's negative? what kind of factors and considerations to you look for in weighing the public interest in a merger? >> guest: so, the way i approach this, are there any harms coming about as a result of the her very? -- merger? what are the specific harms to the consumer? if there are harms, conditions should be narrowly tailored to address those, but it should not be an excuse to implement rule makings of issues that don't arise because of that particular merger. so i think commissioner baker gave a tremendous speech on this in february, and i whole heartedly support what she said there. >> host: typically, the antitrust regulators, justice and ftc, their remedies tend to be one-time divestiture kind of

remedies whereas the fcc tends to, quite frequently, impose sort of ongoing business practice, prohibitions or mandates. ands what is your view of that, is that the only path the fcc has in terms of trying to get at the kinds of issues that are public interest issues as opposed to competitive issues? >> host: your right in doj can actually sue to stop a merger, and that's exactly what their ultimate remedy is. but they try to get the parties to agree ahead of time for divestiture, other conditions like that. and so you say it's one time, but a divestiture can be rather permanent and longstanding. >> host: oversight, i guess, is what i was getting at. you do it, and it's kind of done. >> guest: sure. they're not the regulatory agencies for these industries ongoing.

in an fcc context historically the fcc would impose conditions that the parties are agreeing to voluntarily ahead of time. and, of course, there is the opportunity for coercion. so companies, i think, come to the fcc and the department of justice realizing there's going to be a transaction cost or regulatory cost. that's the cost of doing business. and whether that's good public policy or not is a matter for debate, but that is historically what has happened. >> host: one of the conditions that michael copps discussed with regard to at&t/t-mobile was the issue of net neutrality. now, on the house floor this week representative marsha blackburn, a republican of tennessee, spoke about net neutrality which the house is looking at this week. >> net neutrality is the federal government stepping in and saying, we're going to come first, we're going to assign priority and value to content. it, basically, is the fairness

doctrine for the internet. int as i said, there has been no market failure, and there is no need for this government overreachment so so many -- overreach. so so many are saying, why do this? it's one of those issues of power and control. government wanting to dictatenmn what speed you will have, how often you will be on, the typele of internet service that you will have, being able to control that. >> guest: so i was actually just in nashville last week with congressman blackburn, and we did a town hall together, and she spoke almost those exact same words there as well, and she's been a very passionate leader on this issue. when she says there's nothing broken, i wholeheartedly agree, there is nothing broken in this space. i had a very long dissent back in december on this issue. i feel not only is there nothing broken, but the fcc didn't have the legal authority to do what

it's doing. it's defying a court order from almost exact hi a year ago as well as in the last congress we had a large bipartisan majority of congress. those are words we don't hear strung together very often these days, about 302 members of congress by my count who wrote to the fcc and in one form or another either said don't do it or don't do it this way or have congress handle it. so if this is going to be a public policy issue, it really should be addressed at the congressional level, and so i think congress is trying to address it -- at least the house is -- through the congressional review act. >> host: so if you were in a majority on an fcc decision and congress decided to negate that decision, what would your view be? >> guest: well, you raise a good point which is some of these things are outcome-based. just because someone likes the outcome, the policy outcome of a particular order by an agency you still have to respect the process. so, for instance, i would love to see the federal government

have a balanced budget. but the fcc, obviously, does not have the authority to impose a balanced budget on the federal government. we had a vote yesterday, which is interesting, on data roaming. i think it's very important for consumers to be able to make sure that their 4g phones can roam on other carriers' networks, and we want to encourage carriers to reach contractual agreements with each other. but i just didn't feel the fcc had the legal authority to do that. in fact, there's an explicit statutory prohibition, a section calls 332 of the communications act, that prohibited the fcc from doing what it did yesterday. so you may like an outcome, but you have to respect the process. that's why it's there. we can't exceed our authority, even be it's a good idea. >> host: following on to that idea of respecting authority, now that a year is in place whether it's data roaming or the net neutrality rules once they're published as a lengthy

process for them to be effective, assuming that the house and the senate don't manage to pass through this congressional review actress louis that would overturn them and assuming that a court does not get around to staying or overturning them in time before the first complaint comes up before the fcc under these net neutrality rules, how do you as someone who dissented from the net neutrality rules or if there were data roaming as someone who dissented, how do you approach those kind of issues of fact and disputes under rules that you yourself oppose? is. >> guest: excellent question. so you're saying there's a rule i oppose, it's the law of the land, though, until it gets overturned in court, so what do we do? it's going to be fact-specific, you know? the i do think there'll be a number of complaints filed at the fcc under the net neutrality rules, and we'll see where those facts lead us. you have to look at the law, you have to look at the facts, and when you start straying from those principles, you can get

inconsistent. but, you know, the most common request we actually get at the fcc when you boil it all down is, please, regulate my rival. and i think that's what's going on in net neutrality and can a number of things we see. >> host: one area of please regulate my rival or regulate the other guy in terms of points of net neutrality, they'll sometimes bring up, well, why aren't you regulating, why aren't you applying these to google and other network providers, and i imagine we'll be hearing why aren't you proceeding these to netflix because they seem to be the other side in this whole issue. why aren't b these rules applied to google? necessary flick, do you think they should be applied to them, and how would you go about? is some of the other aspects of net neutrality, not sure how much sense they make if you're not really running a network, so --

>> guest: let me describe a company to you. it's got thousands of miles of fiber, it's got servers and soft switches. it offers voice, video and data services. and so is that company at&t? is it google? is it verizon? or is it microsoft? and the answer, of course, is it's all of the above. and so if from a network perspective, an engineer's perspective if you start diagramming what these company look like, they look very similar. so i think this actually calls for a telecom act rewrite and more of a reliance on competition law than it does relying on 75-year-old sort of stove pipes we're going to treat phone companies one way and cable companies another way and wireless companies yet another way when technology and the marketplace have moved well past those antiquated stovepipes. so that's a fundamental issue, i think it's an excellent question, but i don't think the internet network management regulations that i dissented against in december should be

applied because, a, there's no problem, b, there's laws on the books that already protect consumers, c, i think the certainty of unintended consequences and unintended harms, actually, that can come about. so i wouldn't want to see them applied unless we can really find evidence of some systemic market failure. >> host: do you foresee, do you see an ap tide for telecom rewrite? >> guest: you know, the old ma bell monopoly was broken up in if '94. it took about 12 years for the 1996 rewrite to come about as a result of that. and it takes a very long time. i think over time, yeah, i think there'll have to be one because it's such a fundamental part of our economy. and it's really telecommunications provides the rails, so to speak, on which the

entire economy rides. and we want to have as much innovation and construct i experimentation -- constructive experimentation and constructive risk taking in that sector of the economy as possible. by some estimates the fcc oversees about a sixth of the economy, the same slice of the pie as health care. that's well over $2 trillion. but it really reverberates and effects all aspects of the economy. so as technology continues to move, we have to continue, i think, to look at whether we have rules on the books, laws on the books that might be slowing innovation and experimentation down and get rid of them and backstop them with competition law. >> host: any specific laws come to mind that, in your view, stifles innovationsome. >> guest: well, for instance, if we're going to start treating the wireless industry like the old wire line monopoly industry, i think that's going to cause real problems in that thus far it appears in the past two years to be where we're headed. congress very consciously with

the 1996 act had a hands-off approach when it came to wireless. and what we saw was a tremendous explosion of entrepreneurial brilliance in the wireless industry. we saw rates come down, we saw functionality and innovation go up and investment go up. and now the penetration rate, you know, we have over 300 million people in the country but 290 million or so have wireless handsets or subscribers. and so there's more power in the hands of consumers as a result. as a result of having had deregulatory approach to that industry. but what we're starting to see now, at least at the fcc, is more of a regulation of the wireless space as a wire line monopoly. and i think that could start to, as one example, start to inhibit innovation and investment. >> host: this is c-span's "communicators" program. our guest this week, robert mcdowell. one of five fcc commissioners. lynn stanton with telecommunications reports, senior editor, is our guest

reporter. >> host: short of having congress rewhere the telecom act, there are some major reforms the fcc is looking at in terms of the universal service system and the intercarrier compensation system that governs how money is transferred amongst the carriers in the industry. is this year that -- and this has been talked about as long as i can remember -- is this year it finally happens? >> guest: i sure hope so. just to clarify, our universal service is over $8 billion a year, it's one of the largest subsidy programs in the government. and it's where one group of telecom users subsidizes another, basically, is how it works. intercarrier compensation is related in that it governs how carriers, telecom companies compensate each other for terminating traffic on each other's networks, things of that nature. you know, in the fall of '08 there were four fcc commissioners out of five -- two republicans, two democrats, i

was one, commissioner copps was another -- we had agreed in principle on many of the intercarrier compensation and universal service issues. some of these are very thorny and arcane and make people's eyes glaze over, but they're very, very important. it didn't happen then, but i think that provides a very bright ray of hope that we can agree on these things. it's important to show that we can degree on these things. -- can agree on these things. i think the american people, it can be a politically-charged issue. there are a lot of stake hold earth, differences of opinion between the house of representatives and the senate. the house of representatives tends to represent urban and suburban constituencies. you have the senate that tends to represent more rural interests, and so it's very difficult for congress to actually come to agreement on this. but that's our job. we're an independent agency. we're not part of the executive or legislative branches. this is why congress created us

in 1934 to make these tough decisions. we have an explicit mandate to do so under section 254 of the telecom act, and it would be my hope we can do it before the leaves fall off the trees this year. my concern is we've started looking at only what they call the distribution side as to who gets the sub is sity -- subsidy versus the contribution side which is who is paying for the subsidy. we still have yet to tee up the notice of proposed rulemaking on who's going to pay for this, and that concerns me. so that's a big caveat. >> host: so you'd rather see them both done together as one action? >> guest: as i've said several times before, it's sort of like fixing a watch. it's impossible to fix one part of the watch because it's all interconnected. you have to look at the whole watch and fix it all at the same time. >> host: one of the distribution side proposals that's before the commission is using reverse auctions in which people would, companies would bid to be

allowed to serve at a currently broadband unserved area, and the choice, as i understand it, of who actually gets the money because there wouldn't be enough money to go around would be based on lowest per-capita cost to bring people onto the broadband network. does that seem like a reasonable way assuming if you got to do everything at once the way you wanted it, is that a reasonable way to go? and should there be commitments on the part of these bidders to stay in the market for a certain amount of time or for this rate that they would charge the end user after getting their subsidy? >> guest: first of all, i've been a proponent. i think it actually would provide a lot of incentive. congress would have to rewrite the law in order to directly empower consumers through the high cost fund anyway to, basically, give you a voucher and then let you decide. we can't do that under or the law for the high cost fund. another part of the fund does work that way.

but i think it does provide an opportunity to make great efficiencies. right now the program subsidizes multiple competitors in the same market, and that doesn't make any economic sense whatsoever. so we have to, first of all, make sure it's compliant with the law if we were to adopt reverse auctions. i'm hopeful that the chairman of the fcc is also on board with this idea in concept, and i think it could really have a great deal of bipartisan support. it does make a lot of the incumbents nervous when we start or talking about it, but i think we're at a point where we absolutely have to consider ideas like this because we've gotten to a point where the fund is subsidizing inefficiency and old technology, and we need to end that, end that era. >> host: well, commissioner mcdowell, another auction idea is the spectrum auction. now, the white house recently held a spectrum summit. the broadcasters weren't there. are they being treated fairly in this spectrum discussion that's

being held? >> guest: well, first of all, the idea that's been offered up that was teed up in last year's national broadband plan, the chairman's plan, was to have what they call an incentive auction. so for the viewers at home, so if there is a television broadcaster, what sort of financial incentive can be offered to that broadcaster to give up all or part of their spectrum to then have that auctioned off for a wireless carrier or wireless company to offer wireless broadband services. the, what engineers call the propagation characteristics of the tv spectrum are wonderful. the signals travel long distance, they can penetrate buildings and carry a lot of data with them. so it makes it perfect for wireless broadband. but congress would have to act to give us the power to have an incentive auction, mechanism whereby broadcasters would receive some sort of financial compensation. we have the authority right now for auctions in general of the

spectrum but not to be able to cut the broadcaster a check, let's say. so the idea is the broadcaster would get some money, the treasury would get the lion's share of the money. but then there's the idea of would it be truly voluntary? and for those broadcasters who aren't participating, they're probably going to be moved, broadcasters would be moved into a neighborhood of frequencies so that wireless carriers could have a large, contiguous block of spectrum which they need. they need those contiguous blocks in order to operate effectively. so if the a broadcaster has to reconfigure their engineering and equipment, they're going to incur costs. so to be fair, that wouldn't be voluntary by definition for them. but they would have to be compensated at a minimum to try to at least make them whole. so i think that's what's on the horns of the debate right now is to how to make it fair and voluntary. we haven't seen a lot of action in congress on this yet, and

here we are recording this on april the 8th. the number of legislative days for this year is quickly dwindling down, especially as congress is consumed with the budget, government shutdowns and other such things and the war in libya and all the rest. so a lot that's occupying congress' mind right now. i'm not saying it won't happen this year, but we're starting to run out of time. >> host: you talked a little bit about congress and their agenda. we also are approaching, even though it's 2011, a presidential election and another congressional election. does that effect the fcc? >> guest: you know, historically, i think it does. i don't think it should, but i think it does. and sometimes different chairmen have been reluctant to tee up items for a vote in an election year that might be considered controversial. now, one has to ask is how many votes does that actually effect, what we do, you know, how many voters are going to the polls only to vote on an fcc issue? probably not very many. but, again, what i said earlier

to lynn, that's our job is to make tough calls when they are delivered to us and when it's appropriate for us to act. and so that should be in odd-numbereds -- odd-numbered years as well as even-numbered years. >> host: it's hard to get nominations through and confirmations, and commissioner copps would have to leave at the end of this year, and then no one will replace him if there were no nomination pushed through. you see that effecting a 2-2 republican/democratic split because there are issues on which you and commissioner baker disagree with democrats at times. do you see that as a lot of -- many issues on the plate coming up that you think that would effect? >> guest: it very well could. about a third of the time we did a little analysis a few years ago in my office actually on point, about a third of the time the commission is not at its full five-member complement if you look at it historically. it still manages to vote on some

big, controversial issues. but, you know, the premise there -- and i understand it's an interesting question -- should commissioner copps, you know, be rolling off, i still have confidence that the president can appoint and the senate can confirm a replacement this year. >> host: commissioner, what do you think about the new chief technology officer position? how is that, the interaction with the fcc? >> guest: so we, actually, under chairman kevin martin we had a chief technology officer the way we've had chief economists come on for a year or two. advise and meet. i think most of those positions tend to deal more directly with the chairman's offices than they do the other commissioner's -- >> host: i apologize. i meant the white house cto. >> guest: oh. >> host: aneesh chopra. >> guest: he was our secretary of technology under tim kaine, governor tim kaine, and so i've met him a couple times.

he's very knowledgeable, very nice guy, but i don't have, really, any interaction with that office. >> host: coming back to the spectrum auction issue, should the fcc be looking further afield than just the broadcasters? one of the arguments for having broadcasters return spectrum is there is a higher and better use than using the airwaves to send signals to what is about 15% maybe of homes that might still rely on over-the-air broadcasting? but in the at&t/t-mobile, at&t has argued it can do more by combining the two companies' spectrums than either of them can do alone in terms of speed to getting a next generation broadband to market. is there spectrum being held by other commercial wireless companies that the same argument could be made, that it would be better concentrated in more larger hands, and should they be offered or induced or invited to take part in these auctions that you may eventually have the authority to hold?

>> guest: we're actually having this discussion in part because when the iphone debuted in 2007, the applications started to gobble up a lot of the airwaves, right? so anyone who has tried to use an iphone, let's say, in the new york and even at&t's ceo admits that they have a problem, that those applications are gobbling up and slowing down your experience. so wireless carriers have said they need more, more spectrum. your question's a great one in terms of are companies somehow warehousing spectrum. i think they'd put themselves at a competitive disadvantage if they were doing that and would be at an advantage if they were able to put more spectrum online and use it. so there's a market incentive right now for carriers not to warehouse spectrum, but to actually use it because their customers would be happier if their phobes are working faster -- phones are working faster. but i think where we have a lot of potential is with the government. state, local and federal governments occupy about roughly one-third of the