Rumors continue to swirl around Washington regarding whom the White House will tap to succeed Michael Powell as Chairman of the FCC. At least half a dozen names have been noted, floated or endorsed by industry experts, editorial staffs and the like. And each conjecture is supported by a rationale or two about why this or that person has the "inside track," or why he or she would be the best choice. I have offered my own views on the type of person who could fill Chairman Powell's very big shoes, though I declined to name names. Having seen the downsides of the last two rounds of these guessing games from within the FCC, I know that the risks of playing justify the label "speculation."
More importantly, all this focus on persons and personalities detracts from a more important issue: whether the White House makes it a priority to continue promoting investment and innovation in the communications sector, particularly with respect to digital technologies such as broadband, Internet voice and a gaggle of emerging wireless applications.
The FCC is, of course, a so-called "independent agency," created by Congress to occupy the "no man's land" between the Legislative and Executive Branches, formally subject to neither's direction when it comes to implementing whatever communications statutes that are currently on the books. But leaving aside whether the existence of such agencies obscures the neat three-branch structure the Constitution ordinarily imposes on government, the reality is that Congress and the White House can have an enormous "informal" impact on what the FCC does. This influence may manifest as hearings and other forms of "Congressional oversight," or as policy positions taken on behalf the President, who gets to appoint the FCC Chair and the majority of commisioners from among candidates presumably loyal to both the President and his political party.
With respect to maintaining the FCC's current commitment to promoting investment and innovation in broadband and other advanced services, the Executive Branch probably will enjoy a bit more influence than Congress. As I have discussed, honoring this commitment at the FCC will subject the new Chair to intense political pressures regarding the many hard choices required to untangle complicated policies developed when monopolies dominated communications. Even to the extent the goals of these policies remain valid, their methods often make little sense in the era of convergence, competition and constant innovation that the advent of digital technologies has spawned (e.g., the current system of paying for networks). The political pressures to reform such policies will likely be reflected in Congress in conflicting ways, such that little clear consensus or guidance will be directed from the Capitol to the FCC.
In contrast, the Administration has a greater opportunity to speak with one clear voice, both to signal to the future FCC majority its policy preferences and to provide the FCC much-needed political air cover -- all from the federal government's most influential bully pulpit. Such jawboning cannot guarantee that the new majority will stick it out (or together) in the face of the political heat that always flares up when regulators "do the right thing" for American consumers. But the Administration can underscore that failing to maintain an environment that nurtures new and better services and technologies won't just displease consumers, it will also displease the leader of the same political party from which the new FCC majority will hail. Such leadership from the White House will be especially critical in the (unfortunate) event the FCC and Justice Department lose the Brand X cable modem litigation in the Supreme Court. As I have stated, that case is central to the FCC's efforts to minimize regulation of (and thereby promote investment in) broadband and other advanced services under the current Communications Act.
Pleas like this one probably won't keep the rumor mill in Washington from grinding out potential names for FCC Chair. But perhaps this will at least remind those playing the guessing game that the Administration's policy priorities may be more important than the personality it appoints to that prestigious slot.