The new head of the FCC has a history of intense disagreement with the Democratic commissioners.
BY STEPHEN N. BROWN
When Michael Powell was appointed a commissioner to the Federal Communications Commission in November 1997 at the age of 34, the Associated Press was lucky enough to get an interview with him. That interview-"Powell, like his father, defies political stereotyping"-plus his speeches, congressional testimonies, and other stories over the last three years tell us what his tenure as chairmanship may be like. In the AP interview, Powell said, "I'm happy to be a Republican...I'm very comfortable with where that is, and that has a certain outlook. But I'm going to be a thoughtful person first...I'm not a blind ideologue...It's fair to say I'm a moderate."
Six months later, in April 1998, he spoke at the Media Institute, an organization dealing with political issues involving free speech and the First Amendment, where he identified his agency's motive for regulating the broadcast industry. Back then, he said the basic premise of such regulation-limited spectrum and the uniqueness of broadcasting-were wrong and concluded, "With scarcity and...uniqueness [being]...faulty premises for broadcast regulation, one is left with the undeniable conclusion that the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public."
Currently, Powell is one of two Republican FCC commissioners. The other, Harold Furchtgott-Roth, was appointed at the same time as Powell but is considered too polemical to be the chairman, despite his credentials: economics degrees from MIT and Stanford, a tour at the Center for Naval Analysis, the House Commerce Committee's chief economist, and one of the committee's principal advisers when it drafted the Telecommunications Act of 1996. Besides voting "no" more often than any other commissioner, he also engaged in delaying tactics so disruptive that he hurt his standing with the telecommunications industry-in 1999, Allegiance Telecom CEO Royce Holland was quoted as saying, "[I]f the rules are in flux from one play to the next it's hard to run your offense."
Last March, there was speculation that a George W. Bush Administration would pick a Washington-outsider to run the FCC. The chairman of the Texas utility commission, Patrick Wood, appointed to that post by then-Gov. Bush, was thought to be in the running. But not once has a state commissioner been appointed FCC chairman, who is always from the federal milieu. Thus, Powell was the most likely candidate for the job because he had few enemies and was from Washington, DC, beginning his federal career in the U.S. Justice Dept.'s Antitrust Div., where he dealt with corporate mergers.
His experience with mergers came up in that November '97 AP interview, in which he suggested that different federal agencies have different obligations for the same merger: "Powell said the FCC, unlike the Justice Dept., has the legal obligation to consider the impact of consolidation on editorial diversity. But he added: 'I don't accept blindly the proposition that a consolidated company necessarily means you won't get more diverse programming.'" As commissioner, he has done an about-face, advocating reduced FCC activities where the agency has no clear mandate from Congress or the agency appears to duplicate other agencies' efforts. In his April '98 speech to the Media Institute, Powell said, "My decisional schematic asks...Does the [FCC] have the authority?...[I]ts authority is strictly limited to that which Congress has intended." He repeated the theme when he testified before the House Telecommunications Subcommittee in October 1999 regarding the FCC's review of mergers and acquisitions, saying the agency ''should be generally limited to those areas in which [it] can claim primary expertise...[and it needs] disciplined procedures and limiting principles to ensure the rapid processing of such transactions, to preserve the rights of the parties and to avoid duplication with other authorities.''
Powell's complaint that the FCC exceeds its scope of duly delegated Congressional authority should be tempered by two facts: The 1996 Telecom Act dumped a huge work load on the FCC; the agency couldn't just withdraw and take a "hands off" approach, it was duty-bound to implement the Act; also, the Act is muddied with ambiguities, making it hard to see which authority is delegated and which is not. Congress created the problem, not the agency.
He alluded to the Act's shortcomings last December, when speaking to the Progress & Freedom Foundation (PFF): "The statute left unchanged the balkanized regulatory treatment of different technologies and industries...[but] a bit is a bit...we must recognize...every segment of the communications industry (i.e., telephone, cable, broadcast, wireless, and satellite) and none should be examined in isolation. We must...maintain a consistent and principled approach." The remarks suggest that he sees no good reason for treating different service providers in different ways, thus an Internet service provider and an incumbent phone company are really no different. He is accepting the incumbent telephone companies' argument that they should be regulated in the same manner as the cable industry (see Lightwave, December 2000, p. 26). His unhappiness with current regulation is probably the motivation for his reported remarks made last October: "Half our tasks [are] to sort out abstract, almost irrational, exercises figuring out what labels to stick on companies...I could call AT&T any [thing]...and get it through court." But he may be rethinking the issue, because he also told the PFF, "We need to go to school to learn the technological underpinnings that affect policy."
Powell's discontent extends to digital-television (DTV) issues, where the broadcast and cable industries are struggling to implement congressional directives made in the 1980s. He thinks the policy is misguided, as he told one publication: "I'm telling you here on the record, that [the switch to DTV] is not going to happen." But Congress has yet to rescind its long-ago directive. One of the most active people in this area is Richard Wiley, the widely respected FCC chairman under former President George Bush. Wiley has worked long and hard to make DTV a reality, heading the committee that set DTV standards. Powell's dismissal of DTV is also a dismissal of Wiley's efforts, something already noticed in Washington.
Powell's ire with his agency reached a peak when he closed his PFF presentation by reading a short poem with the same cadence as the Grinch Who Stole Christmas: "But to those who do, I would sing with full range that we CAN, WILL, and MUST adapt to this change. Leaving the past will cause pain we all feel, but it's a change that even the FCC cannot STEM, STALL, or STEAL!"
Despite the steady stream of negativism, Powell may be a moderate frustrated by being consistently outvoted by the FCC's three Democratic commissioners. That's the problem when majority vote rules: You can be consistently ignored. But that does not mean the majority is subverting the Constitution. The FCC will soon have a Republican majority, and Powell will be in charge. His actions and treatment of the political minority would serve to prove if he really is a moderate.Stephen N. Brown writes on public policy in telecommunications. He can be contacted by e-mail at [email protected] or telephone: (615) 399-1239.