C3: A Lawyer’s Perspective

I’ve labeled this this talk C3 to reflect three dimensions of [Federal Communications Commission Chairman Tom Wheeler’s] Agenda for Broadband Competition. First, how the Commission might be able to incent more competition. Second, how the Commission can protect competition where it exists. And, third, to identify the scope and contours of competition as administered under the FCC’s public interest standard.

1. Let’s begin by asking how can the Commission incent competition? Of course, the Commission doesn’t root for one business model over another. But it does -- and it should -- look to see if any of its rules should be updated to facilitate the innovation that is occurring in the marketplace.
2. How does the Commission protect competition? An obvious way is through its merger review. The Communications Act instructs the Commission to review transactions involving licenses and authorizations and to determine whether such a transaction would serve “the public interest, convenience, and necessity.” The public interest standard supports the pursuit of values that do not stand or fall on efficiency gains. The Commission considers, as it has said, the “broader aims of the Communications Act”.
3. The third dimension is the unique role of the Commission in expanding the contours of competition to include broader public interest considerations.