Photo: Isaac Brekken/Associated Press
By Saul Hansell Courtesy Of The New York Times
UPDATE | 4:12 Kevin Martin’s spokesman called with some clarifications. See below.
Open was the word of the day for Kevin J. Martin, the chairman of the Federal Communications Commission, when he stopped by our offices Tuesday to meet with a group of reporters and editors. He was pleased that that he had been able to get two other commissioners to back his plan to sanction Comcast for interfering with some customers’ use of file-sharing software. (The final vote will be on Friday.)
And he was eager to suggest that this move reflects a standard of openness that should apply to cable, telephone and wireless networks.
“That precedent is going to be increasingly applied,” he said. “We are setting a very high bar on what network operators can do in terms of putting limits on consumers.”
That is hardly an absolutist defense of what some call network neutrality. Mr. Martin, a Republican appointed by President Bush, wants to portray his views as moderate. Mr. Martin’s view is that people should generally be able to use any device and any software, and connect to any legal content they want to. But some limits, he said, are acceptable.
For example, he said it would be acceptable for a network to give priority to Internet telephone calls over e-mail, because short delays affect the quality of voice conversations much more than e-mail.
“You have to have a very good reason for what you’re trying to do,” he said. “Your solution has to be narrowly tailored.”
Mr. Martin contrasted this view with an earlier approach to openness that forced phone and occasionally cable companies to sell access to their networks to rivals at discounted wholesale rates. This, he suggested, kept the network owners from investing in infrastructure that they would then have to share with their competitors. Mr. Martin’s scheme allows telecom companies to charge what they want, so long as they don’t interfere unnecessarily with how customers use their networks.
“The network operators can recoup their investment in the network and can charge for access to network services, but consumers have complete control over the devices and content that don’t have anything to do with investment in the underlying network,” he said.
I asked about reports that AT&T now bans all use of peer-to-peer networking software on its wireless data network. It also bans some video services, like the Slingbox feature that lets you watch your home television signal on your cellphone.
Mr. Martin declined to answer. His view is that the commission should not publish explicit regulations. Rather, it should address complaints that are made, as it did with the Comcast case.
“The commission is very careful in that we look at the particular facts that are in front of us. We are not judging the next case,” he said. “Hard and fast rules can actually be over- and under-inclusive, and they can also have adverse impact.”
Mr. Martin was asked whether the commission’s approach will push more Internet providers to start to impose caps on how much bandwidth consumers can use.
He said he wanted to reserve judgment on that trend. He seemed comfortable with Internet providers offering services with limits, so long as they are clearly stated.
Mr. Martin, who by convention will offer his resignation to the new president, suggested that the telecommunications industry was moving toward his view of openness, and he takes some credit for this. The commission, after heavy lobbying from Silicon Valley, included a requirement for open access on some of the wireless spectrum it auctioned off earlier this year. Verizon, which won that part of the auction, has agreed to open its entire network to devices it does not sell.
At the same time, Mr. Martin said he was frustrated at faced the lack of response has not been able to gain support, in Congress and among fellow commissioners, for one of his major policy views: That pay TV companies should be forced to allow people to chose what programming they buy, rather than offering only large bundles of channels.
But he suggested that this goal may be achieved anyway if his view of open networks continues to be enforced. Set-top boxes used with cable TV, he said, should be seen the same way as cellphones. Consumers need to be able to use any set-top box to access any sort of content.
This is important, he said, because of the rise of video programming on the Internet.
“Consumers can’t take content from the Internet and easily watch it on their televisions,” he said. He blamed cable companies from preventing set-top box makers, like TiVo, from being able to offer devices that can combine Internet video with cable offerings like on-demand movies.
“The cable operators won’t license a device that integrates Internet video content with their content,” he said. “I’m saying that’s wrong, and I am trying to get the other commissioners to address it.”
One reason Mr. Martin hasn’t gotten much agreement on his views is that some say the current model helps pay for a greater range of content that consumers can choose from.
Mr. Martin acknowledged this, but said people were being forced to pay for options they don’t want. And he suggested that if there was free competition between cable programming and Internet video in open set-top boxes, cable companies would have to offer more choices about programs and prices.
“Eventually people will not pay less for cable and watch YouTube instead,” he said.
Robert Kenny, a spokesman for Mr. Martin, called with a few clarifications. As to what happens in the next administration, he said that while the convention is for the chairman to offer a resignation to a new president, Mr. Martin has not said what his intentions are. His term runs until 2011.
He pointed out that Mr. Martin did not use the word “frustrated” to describe his reaction to the lack of agreement with his views about cable pricing on the commission and in Congress. And he raised a question about the last quote for Mr. Martin. I checked my notes, and there was an error. Mr. Martin said that consumers will “pay less” for cable service, rather than “not pay” for cable.