The FCC oversight hearing by the Senate Commerce Committee started off innocuously enough, with Commission Chairman Kevin Martin heralding the state of the nation's communications market.
Telecom revenues last year generated their biggest increase in five years; fiber connections were up nearly fourfold over the last year; broadband prices are dropping and more people are getting it, he testified.
Then came the Emeril Lagasse moment. Bam! About those AT&T-BellSouth merger conditions, Sen. Daniel Inouye wanted to know. The Democratic senator from Hawaii now chairs the committee. He drilled Martin about the latter's assessment of the merger conditions. In a joint statement with fellow Republican Commissioner Deborah Taylor Tate, Martin said the net neutrality conditions "extracted" by the Democrats "in no way bind future commission action."
If he disagreed with the conditions, Inouye asked Martin, "Why didn't you withhold your vote?"
And thus a tone was set for the Feb. 1 hearing that was more or less civil but not exactly a game of softball. It was the first time all five FCC Commissioners appeared together before the committee since 2004, and the first time for any of them to appear before a Democratically controlled committee.
"We didn't say we wouldn't stand by it," Martin said. He and Tate simply wanted to clarify that the AT&T-BellSouth net neutrality condition did not represent FCC policy going forward.
Democrats on Capitol Hill deep-sixed telecom legislation last year because it lacked the network neutrality provisions that would keep broadband providers from setting arbitrary fees for various bit-rates. FCC Democratic Commissioners Michael Copps and Jonathan Adelstein held out for a net neutrality condition on the AT&T-BellSouth merger.
"It came to us as a conditionless merger," Copps said. "I think it was necessary."
Without Copps and Adelstein, the merger vote may have ended in a stalemate because Robert McDowell, the third Republican of the five-member commission, abstained. He had previously worked for a telecom lobby that opposed the merger, and so recused himself. Copps noted in his opening statement that it might be easier for the commission as a whole to get things done if the members could talk to each other.
"Let me make one minor but I think important suggestion," he said. "Modify the closed meeting rule so that we can talk to each other at the commission." Sen Ted Stevens (R-Alaska) said he'd work on it.
Sen. John Sununu (R-N.H.) had white spaces on his mind. He asked Chairman Martin to describe the "tradeoffs" of auctioning fallow broadcast spectrum versus using an unlicensed scheme. Martin said auctioning spectrum licenses would take more time because the commission would have to specifically identify available bands. Without licensing, the commission simply has to demonstrate noninterference, he said.
Copps said the commission had a "presumption in favor of not licensing," but "would look at a licensing scheme."
Localism and ownership got a lot of play at the hearing. Sen. Byron Dorgan (D-N.D.) used the phrase "spectacular failure" five times to describe the FCC's media ownership efforts. He said the commission's last crack at media ownership rules "nearly, completely emasculated" public interest standards. Copps concurred. He said broadcasters used to have to prove they were serving the public interest every three years before their licenses were renewed. Now the process is referred to as "postcard renewal," he said. Copps called for "explicit guidelines" on localism.
The most explicit guidelines in place now require broadcasters to do a certain amount of children's programming every day. Beyond that, Martin said he'd like more feedback on what broadcasters are doing in the name of public interest, but he was reluctant to create more programming requirements.
Then came the piper. Sen. Barbara Boxer (D-Calif.) hammered Martin on the commission's ownership proceeding or lack thereof. A study suggesting that relaxed media ownership rules would diminish localism found its way into Boxer's hands last fall during Martin's confirmation hearing. The study was ignored in the formation of the commission's relaxed media ownership rules issued in 2003. A former FCC attorney said staffers were told to destroy all drafts and copies of the report. Martin told Boxer he knew nothing about the study, then another one--this one on radio--showed up in her office a week later.
Boxer requested an investigation by the FCC Inspector General's office, which she said at the hearing would be completed this spring. She chided Martin for a comment he made more than a year ago at a banquet held in his honor. In jest, Martin said it was fun to work with him at the FCC because of the "KBG-like" atmosphere.
Boxer suggested the comment was truth disguised as humor, and asked Martin what he'd done about the situation since the suppressed studies came to light. He responded that he had every bureau chief turn over every rock and disclose every e-mail that might pertain to media ownership. A total of 1,400 pages worth of documents has been turned over in a Freedom of Information Act request.
All five commissioners are scheduled to appear again on Capitol Hill, this time before the House Energy and Commerce Committee, Thursday, Feb. 15 at 10 a.m.
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