Today is a big day for opponents of NN. The FCC is poised to finally approve the Adelphia transaction with Time Warner and Comcast – without requiring NN conditions -- according to my sources. While the FCC meeting has reportedly been delayed for a few hours to resolve a non-nn issue, it appears very likely that the Republican majority has resisted the minority’s push for NN conditions on this merger similar to those placed on AT&T-SBC and Verizon-MCI.
There are two very good reasons why the cable outcome is different than that of the big telecom mergers.
First, and most importantly, unlike the telcos dial-up, NN has never applied to cable modems. The FCC ruled several years ago that cable modems were an unregulated information service not subject to telecommunications service regulations like NN. That policy was affirmed by the Supreme Court last summer sparking this NN hullabaloo over the past few months. Not only would it be a big reversal of the FCC’s longstanding, pro-competition and de-regulation policy, it also would be unfairly regulating about almost half of the cable industry -- through the happenstance of a transaction -- and without a normal and open rulemaking process based on evidence and comments to ensure the decision was not arbitrary and could withstand court review.
Second, and practically, there is now a functioning majority at the FCC. At the time the telecom mergers were pending, there was a 2-2 Republican-Democrat split at the FCC. Chairman Martin had to accede to the Democrats’ condition for a set of non-binding Net Neutrality principles in order to move the mergers. Those conditions were out of expedience not a strong binding legal consensus.
