After Michael Powell, What?

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Last Friday, Chairman Michael Powell announced that he would be leaving the FCC in March. We all wish him well.


Mr. Powell has attracted many friends and foes alike. His detractors attack his vision of federal regulation and demonize him. His supporters hail his vision for federal regulation and deify him.


But Michael Powell is neither deity nor demon. He is an intelligent and decent person who led an agency during a difficult time.


It is Mr. Powell’s vision on which there is agreement, for good or ill. The Wall Street Journal editorial page, which curiously broke the story, states: “The next Chairman not only needs Mr. Powell’s instincts and vision [italics are mine] but also a Commission that will follow his lead.” The Journal then attacks the White House and its ally, Kevin Martin, for not supporting every aspect of Chairman Powell’s vision.


Some outside the FCC try to elevate the FCC chairmanship into something grander: a technology czar, an industrial policy czar, or a technological prophet. The FCC chairmanship is none of these. To measure a chairman by these standards does justice to neither the office nor the individual.


Of course, in a democracy it is the rule of law – not vision – that matters. Communications law should dictate the vision of the chairman of the FCC and not visa versa.


Page after monotonous page of federal statute instructs FCC commissioners and chairman of their responsibilities. Strange, vision is not among the responsibilities of the chairman. Nor is following the chairman the responsibility of the other commissioners. And it certainly is not the responsibility of the White House to follow the vision of the head of an independent agency.


Consumers and businesses look to technologists and entrepreneurs, not the federal government, for new technologies, services, and visions of the future. Americans are sophisticated enough to know that government officials do not invent technologies much less foresee them.


But new technologies are slow to develop without clear laws predictably enforced. We look to the government for that which no one else can provide: a clear and defensible exposition of legal rights and obligations; efficient enforcement of those rights and obligations; and timely and just resolution of disputes arising under them. In the communications sector, our government has not lived up to our expectations.


For decades, the FCC has been less than precise in following the letter of an all too vague law. While the FCC prevails against most legal challenges, it loses many cases as well – perhaps as many as 40% of cases related to the Telecommunications Act of 1996.


Every time the FCC loses in court, it sends a signal to investors: don’t invest in the communications sector, because the rules may change and make your investment worthless. Tens of billions of dollars invested in the sector in the late 1990s met that fate. Even when the FCC ultimately prevails in court, the years of litigation cast a shadow on the long-term viability of investments. Nine years after the passage of the Telecommunications Act of 1996, communications sector businesses still do not know their legal rights today, much less ten years from now.


Consumers suffer as a consequence. Unmade investments translate into unmet consumer demand for communications equipment and services. For example, disputes over the legal rights available to television broadcasters during the transition to digital television have left fallow vast swaths of valuable spectrum.


Even where the FCC is within the law, its policies are fuzzy. Consider broadcast indecency. Without clear guidance, the FCC leaves broadcasters and viewers guessing about the definition of indecency. There is reason to doubt that the FCC should have these rules, but any such rules should at least be clear.


The FCC does not need a Nobel laureate in physics or a Bill Gates as chairman. The next chairman should focus on the most basic responsibility of a government agency: to adhere to the law.



Mr. Furchtgott-Roth is a former FCC commissioner.


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