FCC Reform the Star of Confirmation Hearing

As confirmation hearings go, today's hearing on the nomination of Julius Genachowski to be the new Chair of the FCC and current Commissioner Robert McDowell to be renominated for a second term could only be called a lovefest. And why not? Both are among the most qualified individuals ever to have been nominated to serve the agency. Perhaps the most controversial exchange was the debate over how to pronounce the Chairman-to-be's last name (for the record, it's pronounced Gen-a-kow-ski, not chow-ski).

Genachowski sounded all the right notes - telling the story of how his father, an engineer, showed him his plans for turning text into signals so to help blind people to "read" words on paper. It was from this experience that the nominee came to understand that "[c]ommunications technology has the power to transform lives for the better." He talked about how universal access to broadband is important for "short term economic recovery and long term economic success", as well as innovation, job creation, public safety, education, health care and energy independence.

Genachowski also gave Senators a sense of how he will regulate: with "a deep respect for private enterprise," he values the "power of pragmatism" over the "danger of dogma," and envisions an agency that "sees the world from a consumer and family perspective."

While the Chairman-designate answered a number of questions on a variety of topics like spectrum reform, universal service reform, diversity of media ownership, the FCC's role in the Broadband Technology Opportunities Program and the long dead but continually flagellated fairness doctrine (eliciting a groan from the audience), one issue was clearly the star of the hearing: how to reform the agency to make it more transparent and responsive to the public.

Senate Commerce Committee Chairman Jay Rockefeller (D-WV) raised the issue immediately and emphatically: he called the FCC of the past decade "disappointing," saying that it "focused on companies it regulates and their bottom lines," rather than the public interest. He asked for reform that ensures that the agency 1) is transparent; 2) inspires public confidence; 3) puts "consumers first," and 4) relies on "good and honest data" in its decisionmaking. The bottom line: "[f]ix the agency, or we will fix it for you."

This sentiment was echoed by a number of other Senators. Sen. Byron Dorgan (D-ND), called the FCC an "unhealthy agency," and Sen. John Kerry (D-MA) called previous stewardship of the agency "bleak." Several Senators singled out the FCC's website for criticism (the current interface was developed by PK advisory board member and FCC Transition Team Co-Chair Kevin Werbach some 13 years ago, and no one is more critical of the fact that it hasn't been updated since that time than he).

Genachowski responded to these calls for reform by saying that the FCC "can be a model for excellence in government, a 21st Century agency for the information age," and pledged an "open, fair and data driven processes." He emphasized that of all government agencies, the "FCC should be a model for using communications technologies" to interact with the public.

Of course, undertaking such reforms while at the same time moving a large and vitally important substantive agenda will be a huge challenge for Genachowski and his colleagues on the Commission. Thankfully, acting Chairman Michael Copps has already repaired some of the damage wrought by previous FCCs. One option for the new Chairman would be to appoint an advisory committee to come up with recommendations for FCC reform and implementation strategies for those recommendations.

After today's hearing, we asked Congress to move expeditiously to confirm both men for their respective positions. Each candidate had overwhelming bipartisan support on the Committee, and I would expect the same in the Senate as a whole. With the clock ticking on the National Broadband Plan (due to Congress in February) and restoring the economy to good health, delay in getting the agency fully-staffed is not just bad news for communications lawyers - it is bad news for the country.

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