Farewell to Abernathy

Last Friday, December 9, marked the departure of Republican Commissioner Kathleen Abernathy. The FCC therefore briefly drops to a 2-1 Democratic majority. But the Senate should confirm Deborah Tate, a Republican Public Utilities Commissioner (and neighbor of Senate Majority Leader Bill Frist) before it adjorns, bringing the FCC back to 2-2.

A few reflections on Abernathy and some thoughts about the likely new Commission below.

Perhaps nothing so exemplifies Kathleen Abernathy as her departure. Although she informed the Administration months ago that she did not seek another term (her 5-year term expired some time ago, but the law allowed her to continue sitting until Congress adjourned), she patiently remained at her post for months until the Administration settled on a replacement. During that time, she continued to carry out her duties with the same diligence as before, maintaining a positive attitude and approaching Commission work with every appearance of enthusiasm. In other words, she did her duty by her party and stuck it out, even when she would much rather have been some place else.

During the time Abernathy served at the Commisison, she took care to publicaly support the FCC Chair and his agenda — whether that was Powell or Martin. Unlike Powell, however, she carried her support off with a lot more grace. Abernathy did not hesitate to meet with members of the public interest community — even those who radically disagreed with her. Throughout her meetings (and I attended several), she remained both gracious and honest — even when it was clear that she disagreed and was unlikely to change her mind.

The only exception to this rule was the highly contentious broadcast ownership proceeding in 2003. Supporting Michael Powell’s dismissal of mass public comments as irrelevant, Abernathy characterized the 2 million comments opposing relaxation of the ownership rules as “fear and speculation about hypothetical media monopolies intent on exercising some type of Vulcan mind control over the American people.” Ultimately, Congress reversed part of the FCC’s Order by legislation, and the Third Circuit reversed most of the remaining rules changes.

Abernathy’s chief area of interest was wireless services. For example, she took the supervisory lead in preparations for the World Radio Conference, a meeting held every three years by the International Telecommunications Union (ITU) to coordinate radio usage around the world. Abernathy also had an interest in promoting children’s programming and public television. At the same time, she was a staunch proponent of deregulation in media and broadband services. Most recently, Abernathy questioned the need for any conditions in approving the mergers of Verizon-MCI and SBC-AT&T, but concurred to get approval of the deal by the two Democrats.

Abernathy’s departure is probably bad news for wireless. So far, wireless services, whether licensed or unlicensed, have taken a very low priority at Martin’s FCC. (This low priority was even the subject of a joke by Martin at the annual Federal Communications Bar Association “Chairman’s Banquet.”)

Abernathy’s replacement, Deborah Tate, is a public utilities commissioner (PUC) from Tennessee. As a PUC Commissioner, Tate will have addressed telephone and broadband issues, and possibly cable issues. No doubt the administration will have ascertained that she is generally pro-deregulation. As Martin has good relations with the White House, we can expect that Martin will have made clear his regulatory priorities and that the White House will have nominated someone who will support Martin’s agenda. But where Tate stands on wireless issues is by no means clear. These complex issues do not easily break down along party lines or ideological boundaries.

Looking to the two names recently rumored as in the running for the vacant fifth seat shows a split between teelcom and wireless. Accroding to the National Journal, the candidates are Robert McDowell and William Crispin. McDowell, currently at Comptel (the trade association for Bell competitors), can be expected to emphasize wireline competition. Crispin’s clients include major licensed wireless providers. While this would produce a new champion for moving wireless items forward, one would expect Crispin to favor licensed solutions rather than unlicensed solutions.

All in all, trying to predict 2006 becomes a real muddle. No one knows when the Commission will come up to full strength or, when it does, what priorities the Republican majority will have. Certainly broadcast media ownership will occupy a great deal of the Commission’s time. Not only do they have the pending remand of the Prometheus case (which sent back the 2003 reform), but they have the statutorily mandated review of ownership rules that takes place every four years (last was in 2002, so the new one must begin in 2006). Then there are a bunch of cable issues, starting with the pending Adelphia transaction but including local franchising for telcos, cable ownership, and access to programming. And, as always, the DTV transition continues to chug along and require constant tending.

Where in all this will wireless, particularly unlicensed spectrum, fit? Who knows. Without someone like Powell who really believed in it to drive it, it is very likely to continue to sit on the sidelines as a regulatory issue. That won’t stop all the innovation and deployment going on in the space, but it may slow down the flow of venture capital if it looks like the FCC no longer wants to facilitate deployment of wireless broadband using unlicensed spectrum.

So good luck to Former Commissioner Abernathy as she finally gets her wish to leave the Commission and head for greener pastures. Meanwhile, the rest of us will remain in a holding pattern for the foreseable future.

Stay tuned . . . .

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