AT&T/TW Should Include FCC Review; Don't Restore UHF Discount, Clyburn Says
The Clayton Antitrust Act gives the FCC authority to review AT&T's planned buy of Time Warner, and it has the responsibility to do so, given the financial scope of the deal and significance of the combined company, Commissioner Mignon Clyburn said Tuesday. In an interview with Communications Daily, she expressed opposition to restoring the UHF discount and said the FCC should stay the course on making broadband more affordable and driving down inmate calling service rates.
AT&T/TW "should be held to our public interest test just like similar transactions of that magnitude have in the past," Clyburn said. "If the particular parties are confident consumers benefit ... they should welcome FCC review." She said she hasn't talked with either company. AT&T said the deal wouldn't require any license transfers, which was seen as meaning there would be no FCC review (see 1701060057). Clyburn said "it is ripe for review just by its scope and its significance.”
AT&T/TW would dwarf the combined cost of Comcast's buy of NBCUniversal plus AT&T's aborted bid for T-Mobile, Clyburn said, also citing comments President Donald Trump made during the 2016 campaign raising red flags about AT&T/TW's exacerbating media concentration. She said if there were a review, "I would as I always do: Look at each transaction with an open mind." When asked about Clyburn's statements, AT&T cited its letter last week to a group of Senate Democrats defending the deal and saying the DOJ review would cover the public interest (see 1702170062). The FCC didn't comment.
Clyburn also expressed opposition to reinstating the UHF discount. UHF spectrum is now more desirable than VHF spectrum for TV broadcast, and calls from broadcasters to bring back the UHF discount are really about circumventing the ownership cap, she said: “I have got a problem with that.” The FCC should be getting rid of rules that “don’t make sense for the current age," not restoring them, she said.
Though Chairman Ajit Pai is expected to attempt to roll back joint sales agreement (JSA) attribution rules that were approved under then-Chairman Tom Wheeler, Clyburn said she still thinks such agreements give the larger company too much influence over the smaller broadcaster. She repeatedly has endorsed the idea of an incubator system wherein large broadcasters will offer assistance to smaller, minority-owned broadcasters in exchange for some form of regulatory relief. Such an arrangement would be distinct from a JSA or shared service agreement, she said. Assistance is one thing, but being the owner in everything but name is another, Clyburn said.
The now-sole Democratic commissioner said the FCC must ensure broadband is affordable, not just available, to all Americans. "We cannot just concentrate on the infrastructure side of the equation. We cannot simply talk about gigabit towns and cities," she said. "If we don’t talk about affordability, having the means in all communities, including urban communities ... to connect, then we are building technology bridges to nowhere." Calling herself "passionate" about the Lifeline program, Clyburn defended the commission's 2016 steps to address the program's shortcomings by extending support to broadband service and shifting oversight responsibilities from providers to a national verifier. "I am hopeful that my colleagues ... will respect and improve the process which we spent a lot of time helping to revamp. This is not your mother’s and father’s Lifeline program," she said.
Clyburn also noted FCC actions to lower inmate calling service rates, which are being challenged in court. “The rates are egregious. The treatment is callous in some cases, lackluster in some cases, and in a few, it’s been addressed. But for the most part, it’s total market failure,” she said, criticizing state regulators for not doing more to lower intrastate rates. "On this particular item, we don’t see eye to eye, and I have to give NARUC members a D," she said. NARUC didn't comment.
FCC broadband reclassification provided the strongest legal framework for protecting an open internet platform, Clyburn said. "I will do everything in my power to uphold that,” she said. “You cannot have clear authority and clear rules of the road not laid out and expect a functional marketplace.”
She said the intersection of broadband and healthcare is ripe for bipartisan action: “I’ve gotten positive feedback from my colleagues about what this means, what our role is, and what the future entails. I am confident that there is that one place, minimally, that we can work on [by] consensus.” She said she is also hopeful of working with GOP commissioners on wireless spectrum and infrastructure siting issues.
Clyburn is "less sure but hopeful" about movement on the indie programming NPRM she spearheaded, she said. "This is beyond politics," she said, pointing to comments last year from right-wing programmer TheBlaze that also backed regulatory controls on forced bundling, alternative distribution method and most-favored nation contractual language.
Clyburn said she plans to make her positions clear when she disagrees with the new regime, though she wouldn't commit to the news conferences held under Chairman Tom Wheeler by Pai and Commissioner Mike O’Rielly after commission meetings whenever the commissioners voted on a major item. “One of the things that we are hoping to do is keep the lines of communications open with our constituents and that includes the press,” she said. “When we feel, and if we feel strongly about an item, about a subject, about something that we feel is not being adequately addressed, we will speak up and we use whatever platform is the most effective to get the position heard.”
Clyburn said she was "really sad" about growing partisan acrimony at the FCC. In the past, she said, "The atmosphere was extremely pleasant. We disagreed and I can't say we always voted 5-0 but it wasn't always a disagreeable environment. Things have changed a bit; I’m hopeful we will hit the reset button.”