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 . . . .

The Consumerist runs this good but inaccurate report on AT&T's offering its mandated $10 DSL intro rate for those who have not subscribed to DSL previously. AT&T accepted this as a merger condition when it acquired BellSouth last year. What Consumerist gets wrong is that this condition comes not from the FTC, which did not review the merger (regular readers will recall that it was the Department of Justice Anti-Trust Division that gave the merger a thumbs up with no conditions). The price control aspect came from the FCC, as part of the bucket 'o concessions AT&T made after it failed to get McDowell unrecused and suddenly had to respond to Democrats rather than blowing them off with bogus concessions.

This matters for two reasons. First, it means that complaining to the Federal Trade Commission, as suggested by Consumerist, is not exactly effective. FTC had nothing to do with the condition and won't enforce it under their merger authority. If AT&T makes it damn hard for people to order the cheap rate, then there might be a claim as an unfair or deceptive trade practice, but I think that is kind of a stretch.

No, the place to complain is at the Federal Communications Commission. While it doesn't hurt to file a complaint with the FCC's Enforcement Bureau, you will also want to make sure that you copy it to the FCC's record in the AT&T/BellSouth merger via its Electronic Comment Filing System (ECFS). The relevant docket number is 06-74.

But, more importantly, this raises some serious questions that Congress needs to ask not merely about AT&T's commitment to honoring the merger conditions, but also about the FCC's willingness to enforce them — especially in light of statements made by Chairman Martin and Commissioner Tate at the time of the merger. Fortunately, President Bush's decision to nominate Tate for a second term provides an excellent opprtunity for members of the Senate Commerce Committee to put these questions to Commissioner Tate directly.

Because while $10 DSL is important, this is also important to other AT&T merger conditions, such as network neutrality condition. And while, unlike many of my colleagues, I don't think Martin or Tate are mindless Bellheads or wholly owned subsidiaries of AT&T, I do think it's important to get them pinned down on the record that they will vigorously enforce the merger conditions and not allow AT&T to weasel out by “complying” in a way that deprives these conditions of meaning.

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If their performances at Tuesday's Senate Hearing on Universal Service Fund Reform (USF) are any indication, I am definitely going to become a huge fan of Frosh Senators Claire McCaskill (D-MO) and Amy Klobauchar (D-MN). After listening to FCC Commissioner Deborah Tate (who chairs the Federal-State Joint Board on universal Service that oversees the Universal Service Fund) explain that USF reform has stalled because it has been impossible to get “consensus” from the industry “stakeholders,” Senator McCaskill said:

What you’re basically saying to us is the FCC is incapable of moving forward on reform unless all the people who are making money say it’s OK, and that’s hard for me to get my arms around.

Senator Klobuchar echoed similar incredulity and disbelief.

I hope these two maintain that sense of disbelief and outrage. Because the ideas espoused by Tate on the proper role of the FCC and Congress have become so embedded in telecom policy that even friends of the public interest take it as a given.

But hopefully, thanks to McCaskill, Klobuchar, and the other progressive “freshmen,” that may change.

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Back before I finished law school, my employer Media Access Project was arguing that broadcast stations that did nothing but air program-length commercials (aka the Home Shopping Network and its various clones) did not serve the public interest and therefore did not deserve one of the scarce licenses made available for broadcast television. This being back in the day when there was still some expectation that broadcasters needed to demonstrate that they served the “public interest, convenience and necessity” as required by the statute, you understand. i.e. a long time ago.

As part of the 1992 Cable Act, Congress forced the FCC to have a proceeding to determine if stations that did only home shopping served the public interest. Unsurprisingly, the FCC found that there is a vital public interest need for people who could not otherwise get zirconium diamonds or commemorative collectors plates.

And you wonder why we learned to treat the “public interest” as a joke?

Anyway, my boss, Andy Schwartzman, filed a petition for reconsideration after the FCC issued its decision in 1993. Under the statute, you must file a petition for reconsideration before going to court. So MAP filed, arguing that the Commission had not really done its job when it claimed that Home Shopping Network and other such stations served the local community, and that the Commission had failed to consider other valuable uses of the spectrum.

And there the matter sat — for fourteen bloody years! — with us unable to go to court until the Commission resolved the damn thing. It became something of a joke. Every year, Andy would have a meeting with the Chairman of the FCC, and every year would ask about this petition. Every time someone new got named as head of the FCC's Media Bureau, we'd trundle over with our wish list of outstanding proceedings, and at the top of the list was always Petition for Reconsideration in Docket No. 93-8. And every time, the Chairman or the Chief of the Media Bureau would promise to look into the matter. And the matter sat....and sat.....and sat....

Until Kevin Martin, under pressure from the new Democratic Congress, started putting the squeeze on the FCC staff to get the damn backlog under control. And then — Wonder of Wonders, Miracle of Miracles! — the staff decided to address our pending Petition for Recon. Of course, by this time, the record had gotten a tad “stale” (more like “mummified”) so the Bureau issued a Public Notice soliciting comment to refresh the record.

Aside from my personal venting, however, why should anyone care? After all, how many home shopping channels are there at this point (not broadcasters who run infomercials from 2 a.m. to 6 a.m., I mean broadcasters who only show home shopping)?

Because, as explained below, this proceeding actually provides an important opportunity to make two points. First, that the public interest really does matter. After years of neglect, there is (I hope) a body of very angry people ready to tell the FCC that the Commission cannot get away with treating the statutory requirement to serve the local community as a joke; that endless chances to buy adorable porceline figurines of kittens do not make up for the total absence of local programming and coverage of meaningful local news. Second, that there are plenty of more valuable uses for broadcast spectrum, like say opening it up for unlicensed use.
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Back in the summer the Federal Trade Commission (FTC) decided to get in on the Network Neutrality game. As I observed at the time, I'm skeptical the network neutrality will get a fair shake under FTC Chairman Majoris.

But, like the gambler who comes to the crooked poker den because “it's the only game in town,” you gotta show up to play even if you think the odds are stacked. So I and a number of other public interest folks and sympathetic academics will face off against a less-than-level playing field at the FTC's Broadband Task Force's Competition Policy Workshop on February 13 & 14.

Why I consider this playing field “less than level,” and why we will still kick butt, below . . .
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Professor Christopher Yoo of Vanderbilt sent an email to Dave Farber's Interesting People list explaining why the inclusion of network neutrality conditions in the AT&T/BS merger agreement violates the Administrative Procedure Act (APA).

I usually disagree with Yoo on matters regulatory (he being of the neo-con deregulatory school, I being of the pragmatic regulation for a real world school). But that's a matter of opinion. Here, however, he's legally and factually just plain wrong. While he's entitled to argue that he thinks “regulation by merger” sucks rocks (a point with which, no surprise, I disagree), the idea that the merger conditions run afoul of the APA is contrary to statute, contrary to case law, and contrary to the facts of the instant case (with which Professor Yoo seems surprisingly unfamiliar).

Usually, I wouldn't bother to respond to something like this, but it got picked up by Communications Daily and seems to be making the rounds among tech folk unfamiliar with the case law in question. So while no offense to an opponent who usually knows his stuff, I explain in blistering detail what's wrong with Yoo's argument below....

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