washingtonpost.com
For FCC chief, a frustrating disconnect

By Cecilia Kang
Washington Post Staff Writer
Sunday, October 3, 2010; G1

Call him what you want (many have garbled his name), but don't call Julius Genachowski an Internet regulator.

That label, in a political environment where regulation of big business often holds particular scorn in some quarters, is one that the chairman of the Federal Communications Commission has been fighting to avoid.

But for the federal government's top cop for broadband Internet services, that title tends to stick.

Genachowski (pronounced jen-a-cow-ski) set two key policy goals when he took the job: to bring super-fast Internet connections to every home in America and to make sure those lines were open for any Web site and new software start-up to have a shot at making it in the digital economy.

But those goals have proved just beyond reach, particularly as he tries to carry out them out without stepping too hard on the toes of corporate America.

"Some of the policy tensions we work with are very hard to resolve," Genachowski said in a recent interview. "Getting to an optimal place where we are also driving massive private investment is hard. But that's the job."

One year into his campaign, his agency is weaker than ever, and it's unclear whether he'll be able to be more than the nation's top regulator for plain old phones and broadcast TV. And that's just fine with many companies who think the federal government shouldn't reign over the Web.

There are legal doubts that the agency can regulate broadband and even uncertainty that it can be television's decency cop on curse words and wardrobe malfunctions.

But some critics say the deliberative chairman moves too slowly. He has the backing of his law-school friend, President Obama, as well as a clear three votes in the five-member commission. They also say it's difficult to be a broadband regulator without ruffling feathers.

"An FCC chairman is not supposed to be liked by everyone," said Derek Turner, policy director of public-interest group Free Press. "At some point you've got to make a decision."

Genachowski's staff wrote a thick report for Congress on how to get more broadband connections in the hands of American consumers. But few policies have been announced to make that a reality.

The chairman brought in businesses such as Google, AT&T and Verizon to help form his controversial net neutrality regulation. That didn't work, as an impatient Google and Verizon took over those efforts with their own deal. Those companies and others have poured millions into lobbying campaigns to influence his agenda. He's taken two more months and delayed a vote. All of this has perpetuated the FCC's weakened image.

A failed attempt by Congress this week to create its own net neutrality bill puts the spotlight back on Genachowski, whom Sanford and Bernstein investment analyst Craig Moffett describes as "painted into a corner." He's proposed to reassert the FCC's authority over broadband policy but now must do that in the face of a shifting and less hospitable Congress.

"This is a big moment in communications and we can really screw things up royally unless the chairman and the commission has an image of where they want that field to go," said Dave Farber, a former chief technologist for the FCC, who thinks the agency doesn't need a net neutrality rule.

For those who want broadband regulation, the window of opportunity is closing for Genachowski to get his controversial proposals through - such as reforming an $8 billion phone fund to include broadband subsidies to rural areas. Those advocates of net neutrality say he has to pursue a politically unpopular plan to re-regulate broadband through a process that would place high-speed Internet in the same category as common carrier services like plain old telephone.

"The chairman used his first years to articulate his vision for America's broadband future," said Genachowski's former senior adviser Colin Crowell, who recently left his job to start a high-tech consulting firm, Crowell Strategies. "The FCC's job in the coming months will be to make the tough but crucially important decisions required to implement the plan."

Hard-fought efforts

In his office at the FCC, Genachowski talked about his ongoing "commitment to a free and open Internet." But the former venture capitalist and agency legal counsel during the Clinton administration offered no details on whether he will implement a policy on that goal in the coming weeks or months.

He disagreed with critics who question his accomplishments.

Genachowski touted his push to make more airwaves available for cellphones, tablets and other wireless gadgets. He promised 500 megahertz of airwaves, which broadcast TV and radio companies had opposed. Last month, the agency approved the use of unlicensed broadcast channels known as "white spaces" that Google and Microsoft hope will turn into Wi-Fi networks on steroids. He said that thanks to his agenda, the nation now thinks think about broadband as a priority and that he's nudged once-resistant companies to compromise on some portions of a net neutrality regulation.

"We got the country's first broadband plan done. It's a terrific plan and widely regarded as a breakthrough ... in respect to broadband thinking that matter, that other countries are looking at," Genachowski said.

When asked how he can be a broadband regulator without clear permission by the courts or law to do so, Genachowski replied that there are "no clean and easy answers." That's why he has taken longer than some critics would like on a proposal to assert the agency's regulatory authority over Internet-service providers.

"Almost everything the FCC does is challenged in court," he said. "There is no clean solution because we have a Communications Act that wasn't written for broadband."

He said complex questions about how net neutrality can be a rule for wireless phones requires more thinking. There needs to be more examination of a pitch by Google and Verizon to allow companies to pay for better delivery of some content on networks.

Those questions, Farber said, should have been looked into more deeply when Genachowski first promised for net neutrality rules one year ago.

"There needs to be a technologist in all those discussions, who is on the eighth floor all the time," Farber said, referring to the chairman's office.

Genachowski said he's reviewing the issues that annoy consumers most - rising penalties to break cell phone contracts and exclusive partnerships between carriers and phone makers such as AT&T and Apple, with its iPhone. More than one year ago he promised lawmakers during a confirmation hearing that he would inspect those complaints that flood the agency each year. No rules have been made or companies penalized. His senior staff say using the "bully pulpit" through probing questions in letters to companies has helped consumers.

But getting people and companies to think like him may not be enough, public interest groups say.

"He has talked a lot and asked for lots of comments, but he has to know time is running out and that he has until the end of the year to solve this authority issue or else he won't be able to do much of anything else," said Gigi Sohn, president of the media reform group Public Knowledge and a vocal early supporter.

His defenders, however, say he's taking a smart approach and building consensus. His former boss, Barry Diller, chairman of IAC/Interactive, said the FCC chairman has persuaded Internet service providers to compromise. Diller supports net neutrality rules that would ensure sites like his, such as Match.com and Evite, would not be unfairly disadvantaged by competitors on the Web. (Diller is a Washington Post Co. director.)

"He's doing things in a way to get something done, whether through parties coming to their own solution or through an actual rule," Diller said.

Data for every guest

Genachowski's office is pristine, with lush eggshell couches and a large glass candy bowl full of USB-port key chains containing agency data for guests.

On a recent day, Genachowski was preparing for a trip to the Computer Museum in Silicon Valley to deliver a speech on allowing schools and libraries to lease unused fiber lines for cheap Internet access.

"I get really excited imagining what we can do in the future with broadband," he said. That order was approved last week, but it is unclear how schools and libraries would tap those fiber connections and who would administer auctions to supply services. Those kinds of details could turn Genachowski's ambition into mush, public interest groups and carriers say.

Few people say they know the FCC chairman well. He rarely veers off message and keeps his thinking close to the vest, say executives, lobbyists and FCC staffers who interact with him. Senior staff steeped with technology policy knowledge have recently left.

And some industry insiders who declined to speak on the record to protect their ongoing relationship with the chairman, said Genachowski doesn't get deeply into the details of telecom policy.

His predecessor, Kevin J. Martin, who was known as a lawyerly FCC chairman, "got his hands dirty" on the legal issues, according to public interest advocate Marvin Ammori, a former adviser for Free Press.

On two visits by a reporter, Martin could be found pouring through piles of legal documents littering the floors and his desk. Dog-eared, smudged and highlighted, the papers were Martin's reference sheets during conversations, where he would hop between piles to look up technical details and legal arguments on arcane telecom issues such as wholesale leasing of phone lines in rural areas.

Martin left with few supporters because of his controversial style and politics. He didn't succeed on major goals like breaking up cable bundling of channels for a la carte offerings. But some of his critics note the Republican chairman did more in his tenure on net neutrality - a largely Democratic issue - than Genachowski.

He auctioned choice radio airwaves with a condition that one swath be open for any device and software. He ordered the release of White Spaces, unlicensed long-range radio frequencies known as Wi-Fi on steroids, with similar conditions. Martin ordered sanctions against Comcast for allegedly blocking BitTorrent files from being shared between users on its network.

"Julius Genachowski has talked a lot about net neutrality but when it comes to actually getting things done, actual orders, you have to hand it to Kevin Martin," said Ammori, a professor of communications law and the University of Nebraska. Ammori and other other public interest advocates filed a complaint to the FCC about Comcast's alleged actions.

Former FCC chairman Reed Hundt said it is too early to judge Genachowski's tenure. He inherited an agency just before a precipitous economic downturn that has hampered his efforts.

"Universal broadband, net neutrality, these were things that weren't even teed up by the Bush administration," said Hundt, who served during the Clinton administration. "Julius Genachowski has changed the conversation, and that is a major accomplishment in this environment."

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