voted to begin the process of reclassifying broadband services. here is the chairman of the fcc, talking about his view on this issue. >> i am please also that this process has produced healthy dialogue inside the commission. among the commission's staff and among those of us here on the bench. there are a number of different views as we began tackling these issues. i believe firmly and deeply in the benefits of a free marketplace of ideas, of robust discussion and public debate, and its potential to produce the best answers to hard questions, as long as all [unintelligible] i ask only this of all participants in the discussion. let's not pretend that the problems do not exist. let's not pretend that the risk of excessive regulation is not real or at the other extreme,

that the absence of basic protections for competition and consumers is acceptable. instead, let's put rhetoric and posturing aside and work together to solve the problems created by the court case so that we can rise together two major 21st century challenges of achieving broadbent sustainable economic growth and job creation, and bringing the benefits of broadband to all americans. with that, i will ask for a vote. all those in favor say aye, all opposed say nay. the request for editorial religious is granted. -- editorial privileges is granted. >> we heard a very loud nay from you on that. what did you vote against, and

why did you vote against it? >> this was a fact gathering comment process for a number of ideas. this is actually the review of an issue that has been looked at many times over the decades. we can no more in depth on that, but this is not anything new. this idea has been examined thoroughly over the years and discredited. i spent a large portion of my time yesterday in the meeting with the fcc talking about how the board administration looked at this in the 1990's very carefully and discarded the common carrier regulation and what we call title 2 of the communications act of 1934. >> do you consider broadband a common carrier? >> no. it is very difference. -- very different.

in 1934, it was written for analog circuits for the telephone industry of the day. that is very different from the complex, computer-based interactive it protocol networks of today. what the commission is trying to do now is essentially legislate, and is really a question for congress to address these issues. we do not have the statutory authority to do what we are doing. >> if you are against broadband being regulated as a title to service, specifically why are you against that? >> first of all, i would not use the word reregulate. there was a status quo of the past where was regulated as monopoly firms -- phone service. it never has been. we have always treated information services and interactive computer services

differently from monopoly voice services of the old ma bell monopoly. so that was a big distinction. broadband has really flourished in the absence of such regulation. let's go back and look if there is any evidence of systemic market failures, and the government has examined this question many times over the past several years. the federal trade commission looked at it in 2007 and issued a unanimous, bipartisan vote that said there is no evidence of market failure and cautioned against rule such as those being proposed today by the chairman of the majority. the fcc cast its nets widely to try to find some evidence of market failure and could not find any. the obama department of justice,

their antitrust division said this is not a national monopoly. the department of justice was very optimistic about new competition in the broadband market. that is the emphasis on what is happening in the wireless network. wireless technologies are what consumers are migrating to to a heavy degree. we have about 76% of the country now with the choice of three were less broadband providers. that number is growing tremendously every day. i also hope that the commission will continue with the efforts that would codify in november 2008 to use something called the television white spaces, the unused tv channels for a license used of that spectrum. they are perfect for world's broadband. the importance of unlicensed use is that technology is more apt

to spread quickly and be adopted by consumers quickly, just like with wifi. just think of the white spaces as wifi on steroids. if you have unlicensed use and more competition, if you have some knucklehead out there who wants to be anti-competitive, to frustrate consumers, that is to the bench of the competitor, either end and licensed competitor using the white space or a wireline competitor. if youhave enough competition in the last mile, all these concerns regarding manipulation disappear. if you have enough competition in the last mile, you do not need these kinds of rules.

>> also joining us is tony rohm. >> the date of a question here is, why is -- yes, sir chairman and julius genachowski talking about is the only way to begin expanding broadband. one of the things you have said in your opening statement yesterday is that we do not need to go through this mechanism in order to improve these other reforms. how would you go about doing those things? >> let me make sure the viewers understand what you are talking about. there's a court decision that came out in april, the day after duke won the national basketball gen been shipped.

it said that based on the commission reject the commission could not use what we call title i. that is the ancillary jurisdiction. you can do certain things -- the national basketball championship. it has been a longstanding rule of law by the courts for quite some time. it did not come as any surprise. this was a case involving comcast. i did not think we had the authority to do what we were doing. the commission, the fcc, do not have the authority to issue network management rules, because it could not point to any place in the act as directed by congress that gave them the authority to do that.

it was very specific and very narrow. the same court has also upheld our attempts to basically tax voice over internet providers to help us get more money for the universal service fund you referred to. it is also connected as codified in that section of the statute that says we can do certain things to help the universal service fund. the same thing with a voice- over internet providers and enhanced 911. voice-over in it cannot be classified as a typical phone service. the point i am making is that i think we still have authority to perform universal service under section 254 of the act that gives us the authority to

modify the universal service fund. it is one of a larger subsidy funds administered by the federal government. the work around is, if you are a receiving subsidies for traditional voice services, we can tie that subsidy to your performance in the broadband market. that is a concept that four commissioners in 2008 all agreed to in principle. that clearly would survive appeal. >> that is the operative next question. the thing a push to look toward other ways to provide broadband could survive a court challenge? >> absolutely. i think the argument that

somehow the comcast case obliterates our ability to do brought -- to do anything in the broadband space is a complete overreach. it is far more broad than what really happened at with the court. we have this work around idea that i just talked about for the universal service fund. has been tied to the national broadband planned that the chairman submitted to congress on march 16. the two big components their work revising universal service to help broadband. finding more ways to bring it to market so we have war were less broadband, more competition. there is no way to argue that comcast affects our ability to do that. >> your democratic colleagues on the fcc have stressed very strongly the importance of this case in their action. chairman genachowski in his opening remarks yesterday said that because of the comcast

case, a created uncertainty and has been widely regarded as settled. he said the sec has an obligation to move forward with an open public comment pro or reprocessed to ask hard questions. >> i think what has created uncertainty is actually discussion of trying to regulate the internet and common carrier rules, the old phone monopoly rules. it was ashley settled for years, and this is something they gained a lot of traction in the clinton administration. they teamed up the process for the classification for cable broadband in 2002. it went from the clinton administration into the bush administration and went from there. in the course of that, broadband proliferated wonderfully.

we see great innovation and investment. it was called the edge of the internet, devices and computers and applications of software. that is exploding, unfettered by regulation. we also want to see innovation within the networks of the internet. the age and the core are converging from the consumer's perspective. they do not care how the services are delivered, as long as they have competition and innovation and lower prices that they can enjoy. that is what is happening now. what has been proposed creates an asymmetrical market that places the thumb of government on the core of the internet and says we can have unfettered innovation at the edge, but at the court it will have a mother my eymay i approach. dsl had to play catch-up because

it was regulated. we saw proliferation really explode it wonderfully. wireless has been largely unregulated. i am very concerned that the commission may be poised to start heavily regulating the wireless industry. are we going to say that all wireless broadband will be treated under title ii? congress adopted portions of title ii and title iii, to adopt some of those provisions between wireless carriers and wireline carriers. we cannot legislate, only congress can legislate. i am very concerned about this

item, regulating the wireless industry and some other overtures are a prelude to regulations. >> we said broadband is the new national medium? -- would you say that rabin is the new national meeting? >> 95% deployment abroad been -- of broadband facilities. >> how you reconcile that with not being a common carrier? >> competition is the ultimate antidote to regulation. the fact that it is a national medium could be terrific, but when there is competition there, you do not need that regulation. >> one of the biggest points in all this is what congress's role

might be. or that thing she brought up yesterday, the fact that the fcc is not congress. is there a fear that congress will not get to the issue as quickly as it should, or any update to the communications act might take too long? >> linney challenge the premise of your question. >> as you said, broadband is not as big an issue as some in the fcc has said. any legal issues that might arise -- is that something you see congress being able to tackle in the next couple of months are in the next year? >> i challenge the premise that we need authority to do that. >> the back and forth between

some who say you need authority and those who do not. what the fcc can do in this area, and what it does not. >> it takes a long time for legislation. the legislative process can be ugly. that can take a while, or it can be quick. i have to ask, what is the problem we are trying to solve? time and time again, the government has asked that question, and there is no evidence of systemic market failure. the majority voted yesterday that it will give another opportunity to bring evidence of systemic market failure and flesh out some of the new arguments about what the fcc has the authority to do.

>> so the question is, should congress move ahead with some kind of update to the 1996 communications act, and what should look like? >> that is a much better question. the 1996 act was the last major overhaul of legislation. we have ibeen talking about tite i and title ii silos. there are reportedly 35 million video down lawdownloads each mo. as the new technologies have erased the lines between these silos the government created a long time ago before these technologies were invented, will

probably do need to look at that. we need to look at it from an antitrust perspective. is their concentration of market power, and is there abuse of that market power? those should be to fundamental questions before we address anything else. you have to have a concentration of market power and an abuse of that market power. >> chairman genachowski said about the announcement to update the 1996 act -- it could lockean ineffective broadbent framework to foster competition and empower consumers. i commit all available resources to assist congress in its consideration of how to improve and clarify our communications law. >> i look forward to working with congress as well. there will be a lot of ideas discussed up there. consumer groups, industry, congress, anyone who is

interested. this year there are very few legislative days left, and obviously some big issues such as the gulf oil gusher, so congress is preoccupied. i look forward to working with congress, and if we can modernize the law to make it better for consumers, that would be terrific. >> i want to get one more reaction to what chairman genachowski had to say in his opening remarks. the third way is modeled on the highly successful deregulatory approach that the fcc has used for almost 20 years for a small number of title to provisions with broad and reliable forbearance from all other provisions. >> i have tremendous respect for chairman genachowski. we agree on a bipartisan basis about 90% of the time.

this is one area of disagreement that we have. one thing we have in common is, we all want an open internet that maximizes consumer freedom. it is a matter of how you get there. we do not want innovation stifled in any part of the supply chain for consumers. i disagree that placing common carrier regulation designed for the old ma bell monopoly of 1934 is the regulatory. he is talking about two seconds at the heart of title ii, that specifically regulates rates, terms, and conditions of services. are we not talking about rate regulation of broadband? that is pretty much everything, all the authority you need to do anything you want. let's say it is limited -- let's

take him at his word that he is for a limited title ii regulations. this causes a number of problems. future commissions could regulate more, if this were to be upheld in court. i do not think it will. order to do what he is proposing, the commission would have to say what we did before was wrong. something has changed in the marketplace. if there is a change in law, like a court mandate, then you have to do this, you have to regulate more. what we have going forward is no evidence that would support that, and the commission is about to say, on the one hand, broadband internet access is just like monopoly phone service from 1934. on the other hand, is so

different that we are going to withhold from applying 42 out of 48 sections of title ii. it is really incredibly different from that monopoly phone service. so much so that we will not apply the vast majority of tidal ii provisions. it is just the same and enough to cross that threshold, but so different that we are not going to apply the provisions of title ii. >> how do you see this public comments operiod playing out? >> there is a very tight turnaround, not a lot of time for folks to do economic studies or legal analyses.

we are talking about less than a month of now when the first round of comments are due. it will be a quick turnaround. i have been told that the original contemplation was for some sort of order to come out of the commission sometime this fall. i don't know if it be before or after the election. it will be very tight turnaround. >> i want to pivotal little away from the conversation and talk about some of the things -- one of the big things is the merger between comcast and nbc. where do you see the issue going? >> i have an internal policy where i do not talk about prospective mergers before us. i am happy to talk about issues in general that could be

related. >> we saw that a number of groups had asked for an extension in the first leg of it. that felt that the content that comcast and nbc was not in a format -- do you think there should be more time to study this, or are you happy with the way the proceeding is going? >> there is certainly a lot of information coming in. there will be a very thorough review. i want to make sure in general that mergers are looked at and resolved one way or the other, approved or not, in as tight time frame as possible. a lot of companies that come to us with these merger applications have financing deadlines. banks will not lend them the money after a certain point. it costs millions of dollars a

day in the interim period as a matter of good government, i would like to go for results as quickly as we possibly can. we have a new merger transaction team coming in, and perhaps that will help facilitate things. it should be thorough. we want to make sure we get it right. >> we are out of time, so we will have to say those other issues for another visit. commissioner robert mcdowell, thank you for being on "the communicators" today. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> a look now at chalmette, louisiana. >> what are you doing here tonight with this event? >> we want to inform the public of how we are fighting the oil spill and also provide some of the services to them.

i started out doing town meetings when i first got here and realized there was a gap. we were not getting the permission not to the public, and we also were not able to get some of the services answer some of the claims. the whole purpose is the town hall approach, to better inform the public about oil spills and what we are doing here in louisiana to fight the oil spill. >> how many of these have you had, and how have they gone? >> we have had between five and seven. i think they are going quite well. we are able to answer questions and concerns. a lot of folks have come to ask questions about claims. the fishermen have been asking about the vessel of opportunity program. they are here to get involved in that program. if they get stuck in that program, we try to unstick that for them.

we are demystifying some of the things we are doing, like the use of dispersants and burning, and where the fish are being impacted, and what kind of sampling we are doing. >> walk us through a typical day, if there is such a thing. >> i get up pretty early in the morning and get a briefing from the night watch of the activities that went on during the night, which is usually surveillance. we get a handle on what the picture of the oil looks like at that point in time. we set tactics for how we are going to fight the oil for the day. we start moving resources to where that is part of the oil is. about 7:00, we briefed the unified area command about our activities and let them know. around 8:00 i am involved with the governor's call to find out what his concerns are.

after that is all about fighting the oil spill, making sure we have the right resources in the right places, getting the word out, during press interviews. most of my time is making sure we are involved in the fight in doing the right thing. i get out and fly around as that technical commander, to make sure the resources are positioned at the right place and handle logistical issues and concerns that we need to address out in the field. >> how does a person learn to do all this? >> 20 years of experience. my first oil spill was the exxon valdez. i came to the coast guard back in 1987. that has been my profession ever since then, oil spill response. >> we talk to some fisherman in venice yesterday who are worried that the way of life is going to come to an end. what do you say to people? >> i say that we are fighting for their way of life, and i say to them that they will fi