Some Reflections on McDowell Departure, And What Happens Next.

At yesterday’s open Federal Communications Commission (FCC) meeting, senior Commissioner Robert McDowell announced he would be stepping down sometime in the next few weeks. As regular readers know, I was often at odds with Commissioner McDowell’s positions. Despite coming from Comptel (the trade association for competing telecoms), McDowell generally hewed to a fairly rigid Libertarian line which holds that government intervention in the market to create or enhance competition doesn’t work and that the only reason for regulation is demonstrated market failure — with a standard for market failure so high as to constitute an almost insuperable barrier to action.

On the other hand, as I have also noted previously, McDowell came by his convictions honestly and defended them eloquently and thoroughly — his dissents were always well-researched and sprinkled with a plethora of citations. He was not a shill for any special interest, shifting his position based on the shifting financial interest of some industry patron. He was (and is, after all, he’s not dead) intellectually rigorous and intellectually honest, willing to engage intellectually, personally charming and quick witted — an articulate champion of a philosophy of governance I find anathema and that I believe disserves the public.

Which is, of course, what makes public policy and democracy work. We get together in the public square and duke it out in the marketplace of ideas to see who can carry the day.  While dealing with Commissioner McDowell was often frustrating from an advocacy perspective, it does not diminish my personal respect for the man.

Some additional thoughts, including on what happens next, below . . . .

From time to time, there were points of agreement between us and it was a pleasure to work with him when those occurred. McDowell was an early opponent of efforts by some governments to leverage the ITU to extend their censorship regimes beyond their borders. As I said several times when we both testified at the House hearing on Internet Freedom back in February, “I’m pleased to say I agree with everything Commissioner McDowell just said.”

Most importantly, like former Chairman Michael Powell, his embrace of libertarian deregulation made him an early advocate of unlicensed spectrum. This was crucial in recent years when House Commerce Committee Republicans, with increasing religious fervor, have pushed to make licensed . unlicensed a partisan issue. It didn’t used to be. The first major advances in unlicensed spectrum were fostered by Republican FCC Chairs Michael Powell and Kevin Martin and supported by Republicans in Congress such as former Senator Olympia Snowe. More recently, prominent pro-tech Republicans like Senator Moran (R-KS) have also supported unlicensed spectrum such as the TV white spaces as an important part of the overall wireless ecology.

In 2011 and 2012, it would have been easy (and possibly politically expedient) for McDowell to stay quiet on the issue of unlicensed and the incentive auction. Instead, he tried to persuade his Republican colleagues that there really is no inconsistency between recognizing the importance of unlicensed and being an ardent supporter of licensed spectrum as well. For this he deserves tremendous credit.

What Happens Next?

Although McDowell’s departure was not entirely unexpected (rumors have been circulating since Romney lost that McDowell would leave), there is no obvious candidate for his position. In recent years, it has become practice for the President to nominate a minority Commissioner selected by the minority party Congressional leadership (with the House leadership getting one pick and the Senate leadership getting another). But this is not required, and the President can pick whomever he wants provided the person nominated is not a Democrat — subject to Senate confirmation.

Just about everyone has noted that, in the event of the long-speculated departure of Chairman Julius Genachowski, this allows the President to pair his nomination for a new Chair with a Republican replacement — something that will likely move things along on confirmation. Perhaps more significant than the pairing, McDowell’s departure ensures that if/when Genachowski leaves the Commission will retain a Democratic majority rather than being deadlocked 2-2. That is also significant for moving the confirmation of Genachowski’s eventual replacement. Republicans might see value in keeping the FCC in a 2-2 deadlock, but there is nothing to be gained from keeping the Commission at 2-1. Heck, if we get into another situation like last time, where Senators decide to place holds on the nominations for their own reasons, the two Democrats can always threaten to reclassify broadband as a Title II service or bring back the Fairness Doctrine to get the hold lifted. (Kidding!)

Most Diverse FCC EVAR!

Perhaps the most interesting aspect of this is that if/when Genachowski does step down, the remaining 3 commissioners would constitute the most diverse — and youngest — FCC ever. (Mind you, the Commission under former Chairman Bill Kennard was fairly young and diverse as well.) I am pleased that Everrett C. Parker has lived to see the day. Perhaps the President will extend this by appointing a woman to replace Genachowski?

Stay tuned . . . .