With much ballyhoo, on December 9 a report from the majority (i.e., Democratic) staff of the House Committee on Energy and Commerce was released, slapping the bejeebers out of Chairman Martin. Titled “Deception and Distrust: The Federal Communications Commission under Chairman Kevin J. Martin”, the report concluded a year-long investigation. But despite a considerable amount of grandstanding on the part of the House Committee, the report itself is disappointing on a couple of levels.
While it does conclude that Martin “withheld important and relevant data”, “manipulat[ed]” a staff report, “undermined the integrity of the staff”, engaged in “senseless waste of resources”, yadda, yadda, yadda, the report does not contain any truly blockbuster, make-your-eyes-bleed, exposés – no 8’x10’ glossies or lurid videos of Martin in flagrante delicto committing [fill in the political nightmare of your choice here]. In fact, none of the Committee’s charges even seems to rise to the level of a punishable violation of law or rule (although the Committee does suggest that further investigation into some matters may be in order).
More depressingly, though, the report tends to confirm the long-held but seldom articulated beliefs of a number of observers about the way the FCC operates, regardless of who happens to be its Chair. And the odds are that the issuance of the report is not likely to change anything.
The report itself is a mere 26 pages long, but the real fun is in the 75 pages of exhibits, which include copies of email threads to and from FCC staffers. (Memo to self: remember what your mother used to say – “Don’t write it if you can say it, don’t say it if you can nod.”)
For example, the materials demonstrate that, as many suspected, the Commission’s 180° flip on the question of à la carte cable pricing was dictated not by any actual analytical flaws in the FCC’s initial analysis of the issue (endorsed during the tenure of Chairman Powell), but rather by Team Martin’s blind preference for à la carte. Any “justification” that came along with the flip got concocted after the fact, as the staff struggled to come up with a rationale to support the foregone conclusion. Interestingly, it appears that even some Martin loyalists tasked to work on the project were not convinced that à la carte would be in the public interest. Any such concerns got trampled over, though, in the forced march toward the predetermined conclusion.
And then there’s the matter of Martin’s attempt to re-jigger the 70/70 calculation so as to justify increased FCC regulation of cable (a recurring theme in the Martin administration). As it turns out, we casual observers who didn’t happen to be within the Martin Inner Circle weren’t the only ones who thought something was fishy. The report includes an email from none other than Commissioner McDowell expressing the view that “the books have been cooked to trigger the ‘70/70’ rule.” (To his credit, McDowell dissented, issuing a tough statement describing Martin’s tactic as “statistical prestidigitation” and using such pejoratives as “disturbing”, “puzzling”, “illogical” and “dubious”.)
The report also chronicles the Chairman’s insistence on signing-off on all but the most picayune of agency activities, and it documents Martin’s absolute control over virtually all hiring decisions. On the personnel front, the report concludes that a “climate of fear and intimidation” prevail at the FCC, with even the most senior employees living in dread of being “Martinized”, i.e., involuntarily transferred to one gulag-like office or another because they happen to disagree with Martin’s policies or agenda.
The report also raises serious questions about (a) the independence of the FCC’s Inspector General – a position which is supposed to be maximally independent – and (b) apparent violations of various travel regulations by the Chief of the Commission’s Public Safety and Homeland Security Bureau (who just happened to be the Director of Public Safety at Martin’s alma mater, UNC).
All of these allegations are (or should be) troubling, but none of them is anywhere close to a knock-out punch. While the Committee may fume about “dysfunction” and “abuse of power”, Martin’s allies can respond (and have responded) that the report merely establishes that Martin “doesn’t play well with others”. Since Martin, the report’s primary target, is expected to exit the Furnitureship with the upcoming change of administrations, it’s not likely that the report will have any real, long-lasting effect.
And that’s the most tragic aspect here.
There is, of course, no shame if an FCC Chairman has a particular agenda. Though the House Committee may exclaim, Captain Renauld-like, that it’s shocked, shocked to learn that the FCC has become politicized, it really ought to spare us that particular bloviation. The Chairman and Commissioners are appointed by the President and confirmed by the Senate, for crying out loud – how could anyone think that they are not political animals? And the Communications Act itself allocates Commission seats according to political party. So let’s not pretend to get our knickers in a twist over the fact that the Chair might have his/her own political slant on things.
Rather, let’s be concerned about how that slant can or should be allowed to affect the agency’s decision-making processes, its day-to-day operations, the fundamental fairness afforded to regulatees, and the service rendered to the public. Isn’t there some way that the system can be adjusted to assure that consensus exists among knowledgeable folks so that prospective policies enjoy real factual support and do reflect the public interest before those policies are etched in stone. While the Administrative Procedure Act is theoretically supposed to help along those lines, we can see from the report that that doesn’t always work.
The “knowledgeable folks” involved in the decision-making process should include the working stiffs in the Commission’s various bureaus, the people who have experience in how the system operates. This is not to say that the system should not or cannot be changed – it merely recognizes that people who have actually had to implement policies for extensive periods probably have some reasonable insight into the operation of those policies, insight which is not necessarily held by the occasional political appointee with little or no previous hands-on experience in the area. The views of people with experience should be sought out, not stomped on, regardless of the final result.
And by the way, where is it written that the Eighth Floor should be reserved for politicians and friends of politicians, people who have virtually no actual experience in the industries which the Commission regulates? Yes, the appointment process is political in nature, but that doesn’t mean that the only, or the best, candidates will be Washington-based politicos. Wouldn’t it make sense to include on the Commission at least some individuals who have had actual experience in providing service to the public and competing in the industries subject to the FCC’s control?
And while we’re at it, how about going back to the notion that each Commissioner’s office should include an engineer to advise that Commissioner on technical matters – just like the old days? If that means whacking, say, a lawyer from each Commissioner’s staff, well, it’s hard to believe that one lawyer would really be missed.
These are the types of questions which the report raises and which should be answered sooner rather than later. Unfortunately, having taken its shots at the soon-to-exit Martin, the Committee will likely see its job as done, leaving us with nothing more than this unhappy postcard showing the sausage factory in operation. The American public and the full range of industries under the FCC’s regulatory control deserve more.