There’s a phrase I hear a lot these days. Sometimes I hear it from angry folks, muttering under their breath. Some say it sheepishly, with a trace of embarrassment to find themselves saying it. Some pass it off as a joke. The phrase?
“I never thought I’d miss Kevin Martin, but . . . .”
No one can doubt that Julius Genachowski has emerged as the absolute opposite of Kevin Martin. Unfortunately, this includes a stunning inability to make decisions, combined with an ability to generate his own political opposition by dithering. This does not simply apply to the current fight over FCC broadband authority. It applies to everything, including what was supposed to be his big signature issue from the National Broadband Plan — getting 500 MHz of spectrum available for broadband. A perusal of the last year of FCC orders and Commission meetings shows a non-stop stream of reports, studies, and proposed rulemakings. The only actual orders involve things so non-controversial and trivial that they hardly constitute tweaks. It does not help that Genachowski manages to give every impression that while he enjoys jetting about to industry conferences and rubbing elbows with the media elite, he does not appear very interested in actually doing the work of Chairman.
As if to underscore this point, the Agenda for the FCC’s August 5 meeting has only two items: Amendments to the FCC’s hearing aid rules and a proposed rulemaking and NOI on wireless backhaul. While certainly useful items, the FCC could easily have handled these on circulation. Meanwhile, critical elements of the Chairman’s agenda, such as auction of the D Block, final rules for the broadcast white spaces, incentive auctions for broadcast television licenses, special access reform — in short, anything that matters enough to get anyone mad if they lose — languishes. David Hatch portrayed this in a recent National Journal article (sorry, sub required), David Hatch described Genachowski as under attack from Congress. But the sad truth is that Genachowski creates his own opposition by his stunning refusal to actually make decisions and lead. This gives opponents time to organize, frustrates and exhausts supporters, and undermines support for Genachowski’s initiatives. (Why put yourself out for someone who isn’t ever going to actually take action?)
As I said at SuperNova 10, I don’t say this to be mean or simply to vent. To the contrary, I believe Genachowski can still act quickly and decisively to achieve important things and rescue his reputation and legacy. Below, I outline three recent examples — broadcast white spaces, D Block, and general broadband authority — where Genachowsi’s failure to seize initiative and show leadership has resulted in generating his own opposition and diluting his support. I then recommend some general steps Genachowski can take to restore his fading star and rescue his agenda. In the end, however, it is up to Genachowski. He can keep trying to be liked, avoiding anything that might piss someone off, and live the rest of his term in a Chairman-bubble carefully insulated from criticism. Or he can grit his teeth, decide on what fights — win or lose — are worth doing, and start doing the hard work of making real decisions.
“And Saul said: ‘I have sinned, I did not obey the word of the Lord, for I feared the people, and therefore I listened to their voice.” — Samuel I 15:24
This is Genachowski’s problem in a nutshell. By people, mind, I don’t mean the public interest community — whom Genachowski chiefly seems to find useful as a foil for industry to underscore his own “centrism.” I mean pretty much every constituency at the FCC. Nothing with substantial impact moves, because you cannot move something with substantial impact without having a winner and a loser and losers complain — loudly.
When Genachowski came in, he had substantial political support from the White House, the tech community, competing local exchange carriers (CLECs) and competitive wireless carriers. Everyone expected quick movement on a wide variety of fronts from wireless handset exclusivity (aka “wireless Carterfone“) to finalizing rules for the broadcast white spaces and, of course, network neutrality/open internet. For their part, AT&T and Verizon lived in terror of what might happen, offering to cut deals to ward off what they feared were the inevitable swings of policy from laissez faire free market Republicans to Democrats more willing to actually, you know, regulate.
Like Obama with health insurance reform, however, Genachowski discovered that incumbents do not simply roll over and die. To the contrary, they put up a Hell of a fight. When Genachowski announced his original “open internet” back in September 2009, he had support from the President, the Vice President, the Speaker of the House, The President of the Senate, and the chairs of the relevant committees. Rather than fold, opponents responded with a massive “shock and awe” campaign similar to the campaign against “Obamacare,” complete with accusations of a “government take over of the Internet.” But whereas Obama eventually decided to press the fight on healthcare in the face of massive criticism, judging it better to win after committing than to take a clear loss by walking away, Genachowski never seems to have recovered from the shock that incumbents would not roll over.
As a result, Genachowski does nothing unless he receives a steady stream of affirmative support from Congress, the White House, and relevant industry stakeholders. He returns to the same well over and over, insisting on ever increasing levels of visible support for every affirmative action. Opponents of any particular policy have come to understand that all they need to do is create some modest noise, or generate some Congressional opposition, to immobilize Genachowski. Meanwhile, supporters exhaust themselves and expend their political capital simple to get proceedings begun. No one knows what it will take to drive even a mildly controversial proceeding to conclusion, because it never happens.
THE D BLOCK AS CASE STUDY
The failure of Genachowski to move on the “D Block” auction represents a classic illustration of why Genachowski keeps finding himself frustrated at every turn. I wrote a lengthy post a year ago on the subject of D Block and the options for the FCC. For those just tuning in, the “D Block” is a 10 MHz block of spectrum left over from the auction of the returned broadcast spectrum (aka the “700 MHz auction”). AT&T, Verizon and a passle of national public safety groups want the D Block allocated for public safety use to join the existing 12 MHz public safety data block (and 12 MHz public safety narrowband block). From the standpoint of public safety, you get more spectrum — and it is a religious conviction among wireless users that you can never have too much spectrum. From the standpoint of AT&T and Verizon, who emerged as the big winners in the 700 MHz auction, this prevents rival carriers from bidding on primo spectrum. Further, The public safety guys have said they intend to partner with other 700 MHz licensees to lease out spectrum from D Block in strategic partnerships. And who are best positioned to partner with public safety? AT&T and Verizon, since they have most of the good 700 MHz spectrum and are already building a muckin’ huge network that will be compatible with the LTE standard adopted by public safety.
The problem with this arrangement is that it further reenforces Verizon and AT&T spectrum superiority and leaves the other carriers — particularly third and fourth place Sprint and T-Mobile — struggling. So Sprint and T-Mobile have pressed for the FCC to auction the D Block, and get Congress to earmark the revenues to build out a national public safety network.
In the National Broadband Plan — which readers may recall was released back on March 17 — Genachowski opted to auction the D Block and recommend to Congress that Congress earmark the funds from the auction for building a national public safety network. But rather than get the ball rolling with a Notice of Proposed Rulemaking about service rules or a public notice on the auction, Genachowski did nothing, apparently waiting to see if Congress and the Administration would support his plan. Waxman and Boucher, Chairs of the House Commerce Committee and Telecom Subcommittee voiced their support for a D Block auction, and the Administration officially endorsed Genachowski’s goal of getting 500 MHz of spectrum out for broadband use. Still, Genachowski gave no indication of moving forward.
Had Genachowski moved quickly to create an auction, the public safety community would have had a difficult choice between lobbying to kill the auction and losing any chance at the revenue, or lobbying for the revenue to go to building the network. But with Genachowski taking no action to actually make an auction happen — apparently still hoping to get some sort of endorsement from public safety groups or some kind of further support — opponents of the auction had time to organize. They formed the Public Safety Alliance, and began recruiting supporters for the “give the D Block to public safety” position. Rather than respond with a proceeding, Genachowski continued to remain paralyzed, releasing new studies to justify his decision (challenged by the now organized opponents) and pushing those who had already made their case during the formulation of the National Broadband Plan (and thought they’d won their battle) to bring in still more support to win a new battle simply to start the proceeding to consider an auction. But whereas Grenachowski’s failure to act signaled opponents that that they could defeat the plan, it had a demoralizing effect on supporters. Like Achilles trying to pass the tortoise, supporters of the D Block auction could never catch up to the opposition, since Genachowski insisted on fresh showings of support for every showing of opposition.
Unsurprisingly, after four months of sustained attack and no response from Genachowski, opponents scored a coup in persuading Senator Rockefeller (D-WV), Chair of the Senate Commerce Committee, to oppose the D Block auction and support giving D Block to public safety. And that pretty much spikes any hope of a D Block auction even getting underway until this Congress ends. Because while it would be possible to continue an ongoing process in the face of a bill dropped by the Chair of the relevant Committee — such things happen all the time — it is much harder to start a process that directly contradicts the Committee Chair. Oh it can be done, and has been before, but it takes a combination of guts and diplomacy.
So, to briefly recap: Genachowski announces policy. Genachowski fails to take initiative. This encourages opposition, discourages supporters. Eventually, opposition generates enough opposition to exhaust supporters. Result: Genachowski fails to accomplish D Block initiative, despite significant industry backing, White House support, and House support.
BROADCAST WHITE SPACES CASE STUDY
One can at least understand Genachowski’s hesitancy around D Block as a lamentable failure of nerve. But what can possibly explain the failure to resolve the rules for the broadcast white spaces nearly two years after Kevin Martin’s FCC approved the concept by a 5-0 vote? Again, for those unfamiliar with the issue, broadcast white spaces refers to opening unassigned broadcast television channels for unlicensed use. In 2008, the FCC adopted general rules calling for creation of a central database that would tell devices, based on their geographic location, what channels are available for use and at what power (depending on such factors as whether they are adjacent to active television channels). The FCC left unresolved a major question on how to deal with wireless microphones, a couple of significant questions around how the database will operate, and triggered a whole bunch of reconsideration requests around specific rules. But by and large, the work was pretty much done.
When it comes to “issues the tech sector cares about,” finishing the broadcast white spaces rulemaking ranks up there as Number 1 for the vast majority of companies. Microsoft, Google, Dell, Motorola, Philips, and a host of venture capital firms have been telling FCC Chairmen since 2004 that this “wifi on steroids” will create the next generation of wireless innovation and boost deployment of broadband. Microsoft and Spectrum Bridge have run demo projects under experimental licenses. And when the FCC issued a public notice for a database manager, it received nine applicants — despite numerous unanswered questions on how the database would operate.
But for two years, the FCC has done . . . . nothing. It put out the call for databases, refused to answer the wireless microphone question, and done nothing else. Genachowski and others involved in FCC spectrum policy have continued to pay lip service to the broadcast white spaces, and the National Broadband Plan gives Q3 of 2010 as the date for resolving the open questions. But nothing indicates that OET has made any recommendations to the Chairman’s Office — or that the Chairman has the least interest in making the necessary decisions.
It’s not as if the white spaces faces any new resistance. Sure, the broadcasters and wireless microphone guys hate it. But they’ve already sued. You don’t do anything to help yourself with those constituencies by leaving this hanging indefinitely. OTOH, Genachowski has absolutely succeeded in needlessly pissing off the tech industry on the one issue other than network neutrality on which they have ever, collectively, expressed any interest. To make matters worse, Genachowski has not signaled any possible reason for delaying what should have been an easy “gimme” to the tech community and VC community (supposedly core Genachowski constituencies) in that it was simply a matter of finishing off old business approved by the previous Commission in a 5-0 bipartisan vote. To all appearances, it looks like he cannot be bothered to simply make the decisions necessary to resolve the matter. Meanwhile, millions of dollars in investment capital sits idle — or worse, starts to wander away out of sheer frustration.
It’s one thing to burn through political capital through fear and dithering over opposition. It is inexcusable to piss off your base and burn through political capital in an absence of mind — especially when each week seems to find Genachowski on travel yet again to some trade show, investor conference, or diplomatic mission.
THE BROADBAND AUTHORITY DEBACLE
There’s not much to say here that hasn’t been said a lot elsewhere and won’t get said again. As an object lesson in how Genachowski appears to have a talent for shooting himself in the foot and pissing off his supporters, it bears mentioning. Genachowski started this road with three votes for whatever policy position he wanted, and statements of support from the President on down. Having boldly declared his intent to pursue a “Third Way” on FCC authority over broadband access after the Comcast case pretty much eliminated FCC “ancillary jurisdiction,” Genachowski then promptly gave every appearance of caving to pressure by having his Chief of Staff preside over a series of meeting between Verizon, AT&T, and NCTA on one side and Google, Skype, and the Open Internet Coalition on the other.
Whether the negotiations succeed or fail in reaching some kind of “agreement in principle” on net neutrality which Genachowski can clutch to his bosom seems almost irrelevant at this point. The broader question is “why go through this process at all?” If Genachowski had decided to go for Title I, he could have just taken his lumps from net neutrality supporters (which he will anyway) and at least kept his dignity. Instead, Genachowski spent months hoping the Comcast case might come out differently. Then, when he looked about to go for Title I, the Netroots made a huge noise and he scampered over to Title II. Then — predictably — the same folks who opposed net neutrality under Title I opposed reclassification. Genachowski’s response — an effort to broker a “secret agreement” between Telcos, Cable, Google and Skype — can succeed only in pissing off everyone who supported him when he opted for Title II whether or not he ends up making a deal while failing to win him any support from opponents for future efforts.
I’ve occasionally been asked why Genachowski would have gone out on a limb for Title II when he knew the cable and telco providers would push back this hard, especially after they did so last October over net neutrality. All I can say is that Genachowski’s response has a very Hollywood feel. In Hollywood, it’s all about the deal, and getting arch-rivals to come to terms — whether they actually end up doing a project together or not — build your reputation. In Washington, you build your reputation by what you can accomplish, whether or not you cut any deals. Starting with a bold policy initiative and settling for an industry compromise doesn’t make you some sort of Solomon-type figure rising above the fray in DC, it brands you a weakling who can’t follow through.
Effective FCC Chairmen have always picked their public fights with care, and pressed ahead even in the face of enormous criticism. Mark Fowler took a tremendous amount of heat from Congress (even being reversed legislatively a few times) and opponents. Reed Hundt was no shrinking violet, who clashed on more than a few occasions with powerful interests and their Congressional backers. Michael Powell famously defended his most controversial decisions on media ownership before Congress and the courts, and did not hesitate to push wireless proposals that pissed off the entire licensed wireless industry. And, when necessary, he was willing to lose a 2-3 vote on the Trienniel Review Order rather than back down or try for a political compromise. Even Bill Kennard, who was regarded as a the most collegial Chairman in recent memory, was willing to stand up to powerful interests and Congressional critics for chosen issues like Low-Power FM radio.
As for Kevin Martin . . . while nobody would claim he was the most beloved FCC chair, no one would deny he was one of the most accomplished FCC chairs. A review of his tenure shows he would have more votes on substantive orders in a single meeting than Julius Genachowski has managed his entire term. And while Martin came in for a fair share of criticism on how he ran the agency — particularly his love of Byzantine politics — Genachowski’s recent stint as “Referee to Industry Food Fights” has pretty much washed away all that “open, transparent, data driven” stuff.
WHAT CAN GENACHOWSKI DO TO SALVAGE HIS TERM?
As I said at the beginning, I think Genachowski can still make a comeback and salvage his reputation. Folks in Washington love a winner and respond to leadership. When I gave highly abbreviated version of this at Supernova 10, an FCC staffer teased me afterward by saying as I walked by “Make way for an angry man!” “I’m not angry,” I replied. “But life is too short to waste time on saying things that aren’t true.” Genachowski can still turn things around, prove himself an effective Chairman, and leave himself a real legacy. But he is rapidly running out of time.
So my basic recommendation to Genachowski is: start making some hard decisions, then follow through on them. Don’t announce something, then wait for Congress and/or the White House to bless it. To paraphrase the Book of Samuel again: “Though you may seem small in your own sight, are you not Chair of the FCC?” (15:17) Congress delegated broad powers to the FCC, as an independent agency, precisely because Congress is ill-equipped to deal with the day-to-day business of the communications sector. There is a balance for any FCC Chair between respecting Congress (and watching one’s back politically) and total abdication of responsibility. That’s not always an easy balance to find, but being Chairman of the FCC is not an easy job.
For a first choice, I’d recommend getting the damn white spaces done. I say this secure in the knowledge that I am likely to dislike some of the decisions made. But it’s not my job, or the job of my opposite numbers, to be nice about things. We are advocates, making our respective cases. It is the role of the FCC to decide, and of the Chairman to lead the process. That includes recognizing that any decision worth making will have its critics, often powerful ones. On the plus side, all the hard work is done, and even the Republican Commissioners have signaled they would welcome a vote on broadcast white spaces as a way of encouraging a new round of wireless investment. Spend a few hours talking to Julie Knapp and actually make some decisions on how you want him to proceed. Then brace yourself for a round of last minute lobbying, criticism and shouting from the broadcast industry and the wireless microphone industry — who will promptly appeal any order to the DC Circuit. It will pass, and you will have actually achieved final rules on a significant item.
Then pick four or five major items that have real consequences and push them through. Talk to your fellow Commissioners. Show them you actually have a plan for achieving the goals in the National Broadband Plan. Consider carefully who is likely to push back and decide what your negotiating points will be in advance. Do not start down a proceeding, then hit the panic button when the going gets rough. Above all, do not keep going back to supporters for ever more displays of support. Have realistic expectations about what people can do for you. Then roll with it.
It won’t be easy, and a lot of the time it won’t be fun. But if you want easy and fun, you should have asked Obama for an ambassadorship to an ally with a good climate, nice shopping, and no particular geopolitical importance — say Liechtenstien. The FCC needs a leader who can roll up his (or her) sleeves and make the tough decisions. Question for Julius Genachowski: are you up to it?
Stay tuned . . . .