(Sadly, the original version of this got lost in the disk failure we had Tuesday. So this is a somewhat shorter reconstruction.)

With both Republicans and Democrats interested in reforming the FCC for their own reasons, it seems a perfect time to crank out a new white paper on reforming the FCC. As you can see from the press release, Common Cause and my employer Media Access Project have released a new white paper called Puting the Public Back In Public Interest: Painless Reforms to Improve the FCC, authored by yr hmbl obdn't, fellow Wetmachiner Gregory Rose, and Common Cause's Jon Bartholomew. Astute readers with good memories will recognize many of the recommendations from previous posts and writings of mine, including this from this speech I gave back in 2003. Most of these issues have festered for years, for all that they have gained recent notoriety.

In the same vein, I draw attention to Matthew Lasar's piece, 5 Ways to Improve FCC.GOV, on his generally excellent FCC Blog Lasar's FCC Letter. Lasar's suggestions are good, and many of them are echoed in our white paper (although derived independently, great minds think alike and all that).

Coincidentally, a different piece by Matt, “Faux Celebrity Comments At the FCC,” triggered a serious question by Adam Thierer at the Progress and Freedom Foundation blog. Given that we have situations in which a single organization such as Parent's Television Council is able to generate thousands of identical comments from its members, and that others are using fake names, and that there are even allegations that NAB submitted false comments fake brief text comments opposing the Xm-Sirius merger, or used deceptive means to get people to send in such comments, is there any real value in making it easier for the public to file brief comments? Doesn't that just create opportunities for confusion and abuse, warping the regulatory process and shifting power away from the real public to the manipulators and unscrupulous?

Matt gave his answer here, in which he makes reference to what I call the “Alice's Restaurant” rule of public comments: If one commentor says 'my media sucks because of consolidation,' that's an outlier and you ignore it. If two people file, 'my media sucks because of consolidation,' then it's just tree huggin' liberals and you ignore it. But if two million people file such comments, that's data—because we've demonstrated enough people care to at least make a minimal effort to express their feelings.

To amplify a bit, I would certainly like to see anyone who submits fake comments designed to persuade the FCC that people support a particular position when they don't, either by forging their names and email addresses or obtaining these through deceptive means, should be subject to criminal penalties under 18 USC 1001. But I do not dismiss the ability of an organization to get its members to file a boatload of identical comments or complaints through a comment engine. This is the modern equivalent of the petition drive. In a previous generation, the determined citizen might spend a day in a mall parking lot or knocking door to door to get signatures on a petition in support of some candidate or in opposition to some law. Signing something in a parking lot to “send a message about global warming” or “show Washington you hate big government” takes about as much time and understanding as filling out the info in a standard “comment engine,” and tells us the same thing — a broad base of citizens cares at least enough to take a minute to send a message rather than just ignore it.

Policymakers have long experience with petitions and petition drives. They understand the difference between a petition with 10,000 names, 100 individual letters that talk about real life experiences, and the 5 people who take the trouble to actually call or make a visit to discuss their case. Each of these forms of contact provides a type of information, and decisionmakers weight it accordingly — or should.

In addition, as I went on at length after the media ownership vote, the entire regulatory process gains validity when the public perceives it has a meaningful way of communicating with regulators and can monitor the process. Taking brief text public comments in a a simple and straightforward fashion, and allowing the public to follow who files and how many people file, is an important aspect of this.

Finally, it reconfirms for those that have filed that they are not alone (or, perhaps, that they are), helping interested members of the public to organize and engage in discussion with each other. It provides a focal point for concerned citizens to act as citizens and make themselves heard in a way that goes beyond the mere ritual of voting. Even if public comments had no other value, it would be worth it for this benefit alone.

Which is why, I suppose, I've been such a fan of FCC reform for so many years. It's not just about getting better data and creating a process that everyone perceives as more open and fair. These are important. But it is also about something more vital. Ensuring that in our modern administrative state, when so much of our government in a democratic society seems beyond our control, any means by which we maintain the vital link between the government and the governed is to be cherished and nurtured. It reminds us that we are free people in the land of the free, with both the right ad the responsibility to participate in the government decisions that matter to us. We are not spectators in our own lives, nor helplessly awaiting the decisions of others. We are citizens, from whose consent all sovereignty arises, and without whose consent sovereignty is tyranny. When we speak, the FCC (and the rest of the federal government) owes it to us to listen.

Stay tuned . . . . .

So many people are mad at Kevin Martin these days, but for so many different things. He is either a “tool of industry” or “interfering with the market,” depending on whom you ask. And no one seems more confused about this than the ranking member of the House Commerce Committee, Joe Barton (R-Tx).
Mr. Barton understands all bout de-regulating. That's what good Republicans do, after all. But he cannot understand why Mr. Martin is making such trouble for the “highly competitive” cable industry. As reported in this article:

“It's been said that consistency is the hobgoblin of little minds,” said Rep. Joe Barton, R-Texas, the committee's senior Republican. “If that's the case, we could use a few hobgoblins at the FCC.”

Barton complained that Martin plans to ease the cross-ownership ban while doing little on other media ownership restrictions and is attempting to limit the number of subscribers one cable system can reach.

“It baffles me how the same FCC can appropriately eliminate regulations for some segments of industry because of increased competition, and at the very same time refuse to deregulate or even impose more regulation on segments of industry that are creating that very competition,” he said.

Democrats, of course, accept that Mr. Martin as a Republican should be a tool of industry. To the extent they wonder about any apparent inconsistencies, they attribute it to Martin being a shill for the telcos. This, of course, does not explain why Martin denied Verizon's request for deregulation in six major cities or why Martin told Verizon to bugger off on modifying C Block. But if he isn't an industry tool, why did he ram through the sale of Tribune and waive FCC regs so that Tribune could appeal in the DC Circuit and try to get the entire newspaper/broadcast cross-ownership ban repealed?

While armchair psychology and analysis based on shreds of available information is always a perilous past-time, I will argue below that Kevin Martin is actually extremely consistent in his decisions and his management style. I say this neither as a criticism or as praise. But pivotal to understanding the actions of the FCC and therefore to exercising my stock in trade of effective advocacy is trying to make some guess on what actually drives the current FCC Chairman in making decisions. Feld's Second Law of Public Policy states: “Public policy is made by human beings.” (OK, I know Clausewitz said it first about war, but the principle still holds.) So understanding the human beings making policy is a critical step in influencing policy — even if we understand them poorly.

Besides, it's fun.

Guesses below . . .
[Read More!]

A brief bit of noteworthy good news. The Ford Foundation has hired Future of Music Coalition founder and Executive Director Jenny Toomey to take the place of Becky Lentz as the Program Officer for Ford's Media and Culture Policy program.

This is absolutely unqualifiedly fantastic news. As you can see from Wikipedia entry, Jenny has had tons of experience as an indie rocker, indie prodcer, movement organizer, and “big vision” umm... visionizer. I've worked with Jenny for the last 6-7 years and cannot think of anyone I'd rather have in this spot. Because of her experience, Jenny has the rare combination of understanding what makes effective organizing in the field and what makes things happen in DC. She has put together major presentations that tour the country and break down these complicated issues into something people can understand — and see why it impacts their lives. At the same time, she has testified before Congress some ungodly number of times, talking the policy wonk talk with the best of them. She is unfazed by the industry tactics of obfuscation and intimidation, and knows damn well when they are trying to buy off the public interest for pennies.

So while I am sorry I will no longer bump into Jenny regularly here in Washington policy land, I expect real good things to happen from her going to Ford. Good luck Jenny, and keep rocking the world.

Stay tuned . . . .

OK, color me cynical, but I find this recent bipartisan interest in the fairness of FCC processes a source of some considerable eye rolling on my part. Not because the issue isn't timely, important, etc., etc. But because it wasn't until the cable industry started bleating their little heads off that this amazing bipartisan consensus suddenly emerged.

For some background here, I wrote my first major paper on how badly the FCC processes suck rocks back in 2003. I and my employer, Media Access Project, have complained about the crappy way the FCC behaves going back to when the Democrats ran the show and the Media Bureau routinely issued “letter opinions” and developed “street law” that eventually became binding agency precedent. The whole business of how stations could circumvent the ownership limits by engaging in local marketing agreements (LMAs) and joint sales agreements (JSAs) which sold everything but the actual license was bitterly fought by MAP and goes back to the Bush I administration. And yes, I fully agree with the recent GAO Report about how FCC processes favor industry over the public because the long-standing relationships between FCC staff (including career staff well below the Commissioner level) and industry become back channels for critical information and influence.

But it sticks in my craw no end to see Republicans come alive to this issue for the first time because it bit the cable industry on the rear end instead of sticking it to the public interest community.

Nor am I overly thrilled with my friends and colleagues in the movement who seem to believe that Martin invented this mess. Certainly Martin has used every procedural device and negotiating tactic available to him. He is, as I have observed on more than one occasion, a hard-ball player. And his hrdball negotiating tactics — a huge list of agenda items, last minute negotiations, everything Adelstein complained about in his concurrence at te last meeting — have clearly generated ill-will and suspicion among his fellow Commissioners.

But when I think about all the crap that Powell pulled as Chairman with nary an eyebrow raised and compare it to the conduct of this FCC, I could just weep. Martin met with us in the Public Interest Spectrum Coalition (PISC) on multiple occasions when Senate Democrats wouldn't even invite us to testify. And I still remember back in 2003 during the Comcast acquisition of AT&T Broadband that it was Martin who insisted that Powell issue a written denial of our motion to get access to certain agreements so that we would have a basis for appeal.

So while I normally am in full agreement with my friends at Free Press, I must vehemently dissent from their apparent insistence that Martin has debased the FCC's processes to new depths. Martin's FCC is such an improvement over the pro-industry/anti-public interest/don't bother us because we pre-decided it cesspit that was the Powell FCC that these allegations can arise only because Free Press did not exist when Powell was running the first dereg show. As George Will noted, Michael Powell met a total of twice with public interest groups (once with my boss, Andy Schwartzman, and once with Consumers Union's Gene Kimmelman) and conducted exactly one public hearing outside of DC before issuing his ownership order — in far off Richmond Virginia.

And as for the recent Tribune merger — please! I certainly disagreed with the result, but Martin has nothing on Powell's former Media Bureau Chief Ken Ferree. Ferree twisted FCC law and process like a pretzel to give Tribune a waiver extension it didn't deserve. This is the same Ken Ferree, btw, who informed the public interest community that the FCC would hold no public hearings on media ownership because the FCC didn't need “foot stomping” to make a decision. Indeed, the list of the sins of Ken Ferree — whose arrogant disregard for process remains unsurpassed in the annals of the FCC — could fill several more pages of blog postings.

And while all this crap was going on, we had nary a peep from the Republicans in Congress. But as soon as Martin made it clear he intended to actually enforce the existing law against the cable industry, SUDDENLY Congressional Republicans woke up to due process issues and beagn to fret about “abuses of power” and Martin being “out of control.”

I can forgive my colleagues in the movement who weren't around the first time. And I understand the Congressional Democrats, who were either out of power when Powell was running the show or simply not yet arrived on the scene. Certainly Markey and other Congressional Democrats were equally loud in their complaints about process when Powell sprang a spanking new “diversity index” on the public with no warning as they have been n recent weeks against Martin — but being in the minority their protests amounted to little. But when I hear Republicans like Barton and Upton, who positively applauded sticking it to the public time and again, rush to the defense of the poor beleaguered cable industry on process grounds, I have to say something. Even for the self-serving cynicism and hypocrisy that passes for principles in the Republican party these days, this is just too much.

I certainly hope the concerns of Mr. Boehner, Mr. Sunnunnu, and the other Republicans that have suddenly become obsessed with process persist after their master in the cable industry get what they want.

Stay tuned . . . .