The FCC’s September Agenda: A Smarter, Tougher Genachowski? I Hope So.

It’s no secret I and others have started to question whether Genachowski has what it takes to get things done in Washington. But at the same time, I’ve continued to hold out hope that Genachowski will reassess and reposition himself in time to leave behind a serious legacy of accomplishments.

The proposed September Open Meeting agenda shows that Genachowski may be preparing to do just that. In addition to an important but relatively uncontroversial E911 item, the agenda includes two items that promise to have significant impact, but will also likely generate at least some resistance from significant industry groups. The order selecting a database manager and finalizing rules for the use of the broadcast white spaces will make significant new spectrum available for broadband, will likely face a last minute push from broadcasters and the wireless microphone interests that have opposed it. The E-Rate order will make it easier for schools and libraries to purchase dark fiber rather than retail broadband service, and to purchase dark fiber through a competitive bidding process that would also allow government entities to offer dark fiber. This faces stiff opposition from AT&T and other telecom providers, who prefer that USF subsidize retail broadband access services provided by themselves.

These Orders, combined with the FCC quietly telling M2Z to give up hope of getting any spectrum for its proposed free-with-a-pay-tier broadband service, show a new willingness for Genachowski to do something he hasn’t done yet but desperately needed to do: say “no” to people who will squawk – loudly. As I noted in my previous moral exhortation piece, willingness to say “no” and take heat for it is the sine qua non of getting anything worthwhile done in Washington DC.

First of all, lets be clear. This isn’t some Hollywood-esque reversal where suddenly everything is radically different and Genachowski comes out of his corner like Rocky inspired by Adrienne and America to pound some amalgam of Jim Cicconne and Kyle McSlarrow on steroids, then gives us an inspiring speech about being willing to believe in oneself and stand up for what’s right, blah blah blah. Genachowski has chosen his issues and opponents for this first round with care, while deferring the much tougher action on network neutrality until at least after the election. But while I may find this frustrating (and, I think, the wrong thing to do both as a matter of substance and a matter of politics), there is a huge difference between “I think you’re wrong on this issue” and “you are totally mishandling the job of being an FCC Chairman.”

Looking to the strategy of a possible Genachowski relaunch/do over, the September meeting agenda reflects some astute political calculation. The White Spaces item has clear support from the other Commissioners, particularly the Republicans. Both McDowell and Baker have said that they want the FCC to finish the White Spaces rulemaking to enhance wireless competition and spur innovation (usually in contrast to stuff they don’t like, such as possible action on network neutrality). Certainly broadcasters and wireless microphone users continue to raise interference concerns, and some wireless providers would still prefer licensed access to the white spaces over unlicensed access, the biggest questions were actually settled back in November 2008. Further, the Order has widespread support among a wide range of stakeholders, and resolves one of the key spectrum commitments in the National Broadband Plan – which will allow Genachowski to count the spectrum made available toward the goal of 500 MHz. So while one should never underestimate the power of the broadcasters, or the possibility of “star power” influencing the outcome, this is a fairly good place to make a stand against an industry known as one of the most powerful in Washington and build yourself some policy cred.

Similarly, the E-Rate Order takes on some very big players. More importantly, in taking on AT&T’s very public opposition on this issue, Genachowski helps blunt criticism that AT&T bludgeoned him into submission first on net neutrality, then later on third way. The fiber proposal has support from the Schools Hospitals and Libraries Broadband Coalition, which includes, in addition to Public Knowledge, a lot of very photogenic groups like, well, schools and libraries. Furthermore, it is difficult for the Republicans to oppose the measure because it is basically a market mechanism. It makes it easier for those schools and libraries capable of servicing themselves to buy (at auction) the wholesale transport from a number of competing providers rather than pay for more expensive retail services from an often less competitive market. Mind you, they can always say that they agree with AT&T and other telco opponents that the statute doesn’t support inclusion of the service, so it might still come out 3-2. But this doesn’t turn into some “big government trying to take over the Internet rather than trusting the market” sort of deal that causes lots of heat and little light. A polite disagreement among Commissioners on the meaning of Section 254(h) is a heck of a lot easier to deal with as a political confrontation and is much less likely to show up on Fox as yet another example of the evil socialist Obama Agenda.

Taken together, these items reflect a balance previously absent from Genachowski’s agenda meetings. They offer some significant accomplishment, they are popular, they will face some resistance and establish some credibility for Genachowski as a decision maker willing to take some heat, while carefully limiting the likelihood of broader industry blowback.

So if this is a Genachowski relaunch, the question becomes “what does it mean for the longer term?” The happy answer is that it means Genachowski has spent the last month or so evaluating some painful lessons from his first year and now has a much better idea of how to proceed and how to fight to win. In that case, we can expect to see fewer speeches that commit to aggressive goals that piss off entire industry sectors, but a steady stream of orders reflecting a balance of pay-off versus political cost. Dithering will cease, decisions will get made, and actual orders (rather than inquiries, proposed rules, and reports) will get voted. I might not be personally happy with all the choices that get made (in fact, it is a safe prediction that I will have plenty of criticism about specific decisions), but at least things will move that can have real impact. The less happy possibility is that Genachowski will only select items with minimal risk, and that rather than using this as a starting point to start building something effective he will content himself to nibbling around the edges.

It has become easy to be cynical, and to assume that people are inherently incapable of change. But it has long been a cornerstone of my philosophy of advocacy that people in power are complicated and generally want to do the right thing as they see it. I continue to believe that Genachowski wants to make a positive difference in promoting broadband, and I remain hopeful that he has learned the painful lessons that will make that possible.

Stay tuned . . . .

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